On July 1, 2020 a homeowner in Byfield, MA heard a loud crash outside her home. She went outside and observed an SVU pulling away from a utility pole. The pole was badly damaged. The SUV left the scene. She called the police and they found a number of parts from the SUV at the scene. Over the next few weeks the police did an investigation and they identified the parts as coming from a particular year and make of vehicle. A search of the RMV data base showed such a vehicle registered to JW who lived not far from the accident scene. It took several weeks and when they got to JW’s house they found the SUV – with no damage at all on it. A search of auto repair shops showed that the SUV had been brought in to a particular shop and had had repairs made to it – repairs that were consistent with the accident. A check with JW’s insurance company showed that they had paid for the damages to the SUV. The police went to speak with JW but he said nothing o them – absolutely nothing. He exercised his right to remain silent and would not answer one question. (Smart guy.) The police cited JW with Leaving the Scene and Failing to File a Police Report of an Accident and issued him a citation. JW called Attorney Robert Lewin from Andover. Attorney Lewin advised JW to immediately file the citation at Newburyport District Court and request a Clerk-Magistrate hearing.
JW retained Attorney Robert Lewin. (As it turns out JW had had Attorney Lewin represent him previously in another hit & run case which Attorney Lewin won.) Attorney Lewin immediately identified two problems with the police case against JW.
First: The leaving the scene charge requires the police to prove that JW was driving the car at the time of the accident. From the evidence the police had, the police could establish probable cause that it was JW’s vehicle that was involved in the accident. But that is not enough. They had to prove that JW was driving the vehicle at the time of the accident. There was no evidence of this.
Second: Under Massachusetts Law a motorist has the right not to file an accident report if the motorist has been charged with a criminal offense and if answering the questions on the report would incriminate him (i.e. furnish evidence against himself). In this case if JW had filled out an accident report he would have had to identify the operator of the vehicle – one of the very things the state would have to prove in the leaving the scene case. This JW had an absolute constitutional right not to do.
JW’s Clerk-Magistrate hearing was scheduled for December 16, 2020 via zoom. JW and Attorney Lewin appeared via zoom as did the police prosecutor and the Clerk-Magistrate. Prior to the hearing Attorney Lewin had prepared and filed a Memorandum of Law setting out the law (1) that there was no evidence that JW was the driver and (2) that JW had a constitutional right not to file an accident report.
The police prosecutor laid out the facts. JW did not testify. Attorney Lewin argued to the Clerk-Magistrate that there was no evidence that JW was the operator and that JW had a constitutional right not to file the accident report. The Clerk-Magistrate agreed with Attorney Lewin and denied the police application for a criminal complaint.
As a result Attorney Lewin pointed out the following to JW:
- NO criminal complaint was issued against JW.
- JW was not charged with any criminal offense.
- JW did not have to return to Court and go in front of a Judge.
- NO criminal record was created as a result of this.
- The citation had NO impact on JW’s driver’s license.
Needless to day JW was quite happy with the result. There is an expression that Attorney Lewin loves: “A shut mouth is a good friend.” Because JW kept his mouth shut and said ABSOLUTELY NOTHING when approached by the police he was able to avoid these charges.