Clerk-Magistrate Hearings

December 10, 2023

Juvenile Negligent Operation Charge Diverted

LS, a 17 year old high school student, took one of his family cars and decided to do a time trial on an Andover Street. He had three other kids in the car with him. Going around a corner at a high speed he lost control and crashed into a stone wall. Fortunately for LS no one was hurt and the other three kids in the car took off. A neighbor called the police and the Andover Police arrived shortly thereafter. LS was cited by the police for speeding and negligent operation. LS and his parents met with and retained Attorney Robert Lewin from Andover. Attorney Lewin immediately told LS to file the citation at the Clerk-Magistrate’s at Lawrence Juvenile Court. The filing of the citation at the court preserved LS’s right to a Clerk-Magistrate Heating BEFORE a juvenile complaint was issued against him.

Negligent Operation is what is called a Chapter 90 Offense; Chapter 90 is the Massachusetts Motor Vehicle law. Juvenile’s, with no prior court involvement, are typically eligible for consideration into the Juvenile Diversion program. The Juvenile Diversion Program causes a criminal (juvenile) charge to be “diverted” out of the criminal justice system. As a matter of practice, however, Chapter 90 Offenses (such as Negligent Operation in this case) will not be diverted.

After being hired, Attorney Lewin went over to the Juvenile Court in Lawrence to review the court papers and get a copy of the police report. The Clerk-Magistrate informed Attorney Lewin that the police had not yet filed their paperwork at the Court. There is a little known rule called the “6-Day Rule”. The Motor Vehicle Law contains a provision that the police must file their paperwork at the court within 6 business days of the violation. When Attorney Lewin saw that the police had not filed their paperwork (on the fourth business day), Attorney Lewin called LS and his parents and told them we are doing to go silent and wait and see if the police file within the 6 business days. And wait they did. Finally on the 15th business day after the violation the police filed their paperwork at the Court. Attorney Lewin immediately filed a Motion to Dismiss the case for violation of the 6 day rule.

December 10, 2023

Another Hir & Run Charge Avoided

by Robert D. Lewin

On September 19, 2023, BL, a 60 year old nurse from Methuen, went to a store in Haverhill,. As she pulled down the street in the front of the store her passenger side outside mirror struck the driver side outside mirror of a car parked on the street. All of this was captured on an on street video camera. BL continued down the street a short distance and then parked. BL is then seen walking over to the struck vehicle, looking at it the mirror was hanging down by a wire), and then continuing to the store. She is then seen leaving the store with three other people, walking over to the struck vehicle, and then walking to her vehicle and drive away. She did not offer her information. The incident was reported to the police. The police viewed the video. Her license plate number had been written down by someone at the scene. The police cited BL for leaving the scene of a property damage accident and her case was set down for a Clerk-Magistrate Hearing on December 8, 2023.

BL contacted and retained Attorney Robert Lewin from Andover. Attorney Lewin immediately obtained copies of the police report and contacted the Haverhill Police and was able to obtain from the police a copy of the on street video and a copy of the photos of the struck video. BL could not afford to lose her license as she is a private duty nurse who travels everyday from Methuen to Merrimack to care for a patient. A conviction of a hit and run property damage case carries as 60 day loss of license. Attorney Lewin advocated on BL’s behalf with the police to agree to a disposition where BL would not be charged.

The hearing was a zoom hearing. Prior to the hearing Attorney Lewin had obtained and electronically filed at Haverhill District Court a notice that the man whose car had been struck had been fully compensated for the damage to his vehicle by his insurance company. On December 8, 2023, Attorney Lewin and BL appeared on the zoom along with the Clerk-Magistrate and the Police Prosecutor. Attorney Lewin advocated strenuously to the Clerk-Magistrate not to issue a criminal complaint against BL.

November 8, 2023

ANOTHER SHOPLIFITNG CHARGE AVOIDED

by Robert D. Lewin

On August 22, 2023, QG, a 48 year old executive administrator for a high tech company, got caught shoplifting in Target in Danvers. She had picked up a number of items and went to the self check out machine. She put several low cost items thorough the scanner and simply put the other items in a shopping bag without scanning them or paying for them. She then headed for the exit. As she was leaving the store she was stopped by a loss prevention officer and returned into the store. Unfortunately for QG, she had been observed shoplifting on prior occasions and the loss prevention officer recognized her from previous video tapes. The Danvers police were called to the store and told QG that she would receive a notice from Salem District Court. QG then received a Notice of a Clerk-Magistrate Hearing to take place on October 24, 2023. QG became very concerned that if her employer learned of this that she would be fired. QG contracted several lawyers and had a free initial zoom consult (1 1/2 hours) with Attorney Robert Lewin from Andover. QG retained Attorney Lewin.

Attorney Lewin immediately obtained copies of all the court papers and police reports. Attorney Lewin then called the Police Prosecutor and advocated with the prosecutor to resolve the case at the Clerk-Magistrate Hearing without a criminal complaint issuing against QG.

On October 24, 2023 Attorney Lewin and QG appeared at Salem District Court for the hearing. Attorney Lewin advocated for the clerk to not issue a criminal complaint against QG. The Clerk-Magistrate asked the prosecutor for his input. The prosecutor told the Clerk that he had spoken with Attorney Lewin and that he had no objection to a criminal complaint not issuing against QG. The Clerk-Magistrate then said he would continue the hearing for 3 months without issuing a criminal complaint and if there were no reports of QG breaking the criminal law then at the end of the three months no one had to come to court and the Application for Criminal Complaint would be denied and dismissed.

March 4, 2023

ANOTHER HIT & RUN CHARGE AVOIDED

by Robert D. Lewin

On December 10, 2022, at 4:00 am after a night out with friends, ND, a 25 year old man from Methuen, was driving to his home in Methuen when he struck a parked car in Haverhill. He was able to pull his car into an adjacent parking lot in Haverhill. He then left his car there and walked away from the scene. He called a family member who picked him up in Haverhill and brought him home to Methuen. The police responded to the accident scene. They found ND’s car and ran the plate and it came back to ND. Meanwhile, ND’s family member called the police to report the accident and to report that ND had been driving the car at the time of the accident. The police issued a citation to ND for Leaving the Scene of a Property Damage accident.

ND and his family contacted and retained Attorney Robert Lewin from Andover. Attorney Lewin instructed ND to immediately take the citation and bring it to Haverhill District Court to request a Clerk-Magistrate Hearing. Attorney Lewin explained to ND that a Clerk-Magistrate Hearing is an opportunity to “kill the case” before it goes to a criminal complaint. ND immediately brought the citation to Haverhill District Court and requested a hearing.

Attorney Lewin contacted ND’s insurance company to make sure that the owner of the parked car had been paid for the damage (total) to his car. This is important as the Clerk-Magistrate will want to know if the “victim” has been fully compensated for his loss. Attorney Lewin was able to get written confirmation of payment from the insurance company. Attorney Lewin also ran a copy of ND’s driver history and it was clean. This is important as the police will give the Clerk-Magistrate a copy of the driver history at the hearing and it is important to know ahead of time what it shows. In addition, Attorney Lewin ran ND’s criminal history and it only showed one minor criminal case that had been dismissed seven years previously. Attorney Lewin also reached out to the Haverhill Police Prosecutor to discuss a resolution of the case that would not involve the issuance of a criminal complaint against ND.

February 17, 2023

Another Domestic Assault & Battery Win

by Robert D. Lewin

BX, an attractive 30 year old female nurse at a large Boston hospital, had a whirlwind romance with DD, a 33 year old male engineer. They had a first date in October 2022 and by Thanksgiving they were talking of marriage. They went to NY and looked at Diamond Rings at Tiffany’s. He brought her to meet his family. He went to her parents to get permission to marry her. The two planned a trip to the Caribbean where they would seal the deal. Two days before they were to leave to go on the trip they got into an argument. The argument was over his failure to get rid of body soap in the shower that belonged to one of his former girlfriends. (He just could not let go of the memories that fragrance triggered!) Well BX got very angry with him and according to the police report she hauled off and slapped him twice across the face. She then left his place. He then called off the planned engagement and went to the Caribbean by himself. When he returned, his car, which he had left parked in the street, had several new dents in it that were not there before he left. He went to the police and reported the damage to his car and the two slaps to the face. The police applied for a criminal complaint against BX for Assault & Battery on a Household Member. (The police could not charge BX with the damage to DD’s car, as there was no evidence at all that she had caused the damage.)

BX is an emergency room nurse at a major Boston Hospital. A charge of Assault & Battery would cause her problems with the Board of Registration in Nursing and with her employer. It was critical to BX that a criminal complaint not be issued against her. BX had had a previous run in with the criminal law, and had hired Attorney Robert Lewin from Andover to represent her in that prior case. Attorney Lewin was successful in defeating that prior case at a Clerk’s Hearing. Once again BX turned to and retained Attorney Robert Lewin for help.

Attorney Lewin immediately contacted the Cambridge police prosecutor and explained the details of the relationship between BX and DD. Attorney Lewin advocated with the police prosecutor for no criminal complaint to be issued against BX. Attorney Lewin obtained the police reports and reviewed them in detail with BX. Attorney Lewin fully prepared BX for the Clerk-Magistrate hearing and prepared her to testify.

November 16, 2022

Open Container Violation – NOT Responsible

by Robert D. Lewin

On September 3, 2022 NB, a 19 year old college student from Lawrence, drove to the Wendy’s at the Loop in Methuen. It was close to 11:00 pm at night and there was a large gathering of young people in front of the theatre. NB was going a little too fast for the liking of the police and he got pulled over. When he put the window down the police spotted an open can of beer in the center console next to NB. The police ordered NB out of the car. A series of field sobriety tests was administered to NB and he passed them with flying colors. He had had nothing to drink. The police cited him for the open container violation. NB requested a hearing.

NB (and his father) consulted with and hired Attorney Robert Lewin from Andover. It turns out that NB’s father had been working on the car and had put an open beer in the cup holder while he was working on the car. When he finished working on the car he left the can of beer in the cup holder. When NB took the car later that night to go to Wendy’s he did not notice the can.

On November 15, 2022, NB and his father and Attorney Lewin appeared at Lawrence District Court for the Clerk-Magistrate Hearing. The police prosecutor from Methuen was present at the hearing. The police prosecutor read the citation but had no other report from which he could recite the facts as to what actually happened. When the Police Prosecutor was done the Clerk-Magistrate looked at Attorney Lewin and asked what if anything he had to say. Attorney Lewin smiled and said to the prosecutor “I know when to keep my mouth shut. The police did not present any narrative or evidence as to what had happened; therefore NB is entitled to be found NOT Responsible.” The Clerk-Magistrate then turned to NB and said to him: “Today is your lucky day. I find you NOT Responsible.” NB and his Dad left the courthouse thrilled.

November 15, 2022

Tinted Window – NOT Responsible

by Robert D. Lewin

On August 18, 2020, EA, a 23 year old metal polisher, was pulled over by the state police in Methuen. His front driver side and passenger side windows appeared too dark for the trooper. The trooper got out his measuring device and measured the amount of tint. The trooper cited EA for excessive tint. EA requested a hearing. EA had previously retained Attorney Robert Lewin from Andover for a hit and run charge which Attorney Lewin successfully defended. EA again consulted with and hired Attorney Lewin to defend against this charge.

On November 15, 2022, Attorney Lewin and EA appeared at Lawrence District Court for a clerk-magistrate hearing. The State Police were present. The Trooper testified that he measured the tint on the windows with his device and the tint was 23%. Attorney Lewin asked the Trooper one question. What is the legal limit for a lawful tint? The Trooper looked at Attorney Lewin and at the Clerk-Magistrate; the Trooper smiled; and then said “I don’t know!!” Attorney Lewin turned to the Clerk-Magistrate and before Attorney Lewin could ask for a not responsible finding the Clerk-Magistrate marked the court papers NOT responsible.

The case was simple enough; but it shows that Attorney Lewin was on his toes and picked up immediately on the missing piece in the case. EA who has a lengthy record and who needed to beat this ticket to get his license back was thrilled. (EA’s case was the first of two Motor Vehicle Clerk Hearings that Attorney Lewin had on November 15, 2022 both of which Attorney Lewin won.)

September 15, 2022

Assault & Battery on an Elderly Person Charge Avoided

by Robert D. Lewin

DM, an 80 year old male resident at an elderly housing facility in Haverhill was accused of assaulting DI, a 72 year old female resident at the same facility. DM was walking in the hallway of the facility and opened a window in the hallway to get some fresh air into the hallway. DI, whose room was slightly down the hallway from the window, did not want the window open and closed the window. DI claimed that DM then choked her to get her away from the window which he then reopened. DI went to her room and called 911. The police responded to the facility and interviewed both parties. DM denied choking DI. DM told the police that DI had assaulted him. DM did tell the police that after DI closed the window he reopened the window purposely to aggravate DI. The police filed an application for a criminal complaint against DM at Haverhill District Court seeking a complaint of Assault & Battery on an Elderly Person. DM has a daughter who assists DM with his affairs. DM’s daughter contacted Attorney Robert Lewin from Andover. Attorney Lewin set up a zoom conference with DM and his daughter and took a complete statement of the facts from DM and thoroughly discussed the case with them. DM and his daughter retained Attorney Lewin.

DM’s daughter and DM himself were both extremely helpful to Attorney Lewin in preparing a defense to the charge. DM’s daughter furnished Attorney Lewin with photographs of the window and hallway and of DM (and his walker). These photographs would prove to be very helpful later. DM himself furnished Attorney Lewin with his medical records showing that DM had only a 2% use of his right hand and a 22% use of his left hand making it almost impossible for DM to have “choked” DI. In addition DI had been involved in two similar incidents in which DI had exhibited aggressive behavior toward another resident. Attorney Lewin was able to secure the paperwork on those prior incidents.

On September 14, 2022 all the parties appeared via zoom for a Clerk-Magistrate Hearing before the Clerk-Magistrate at Haverhill District Court. Present on the zoom were Attorney Lewin, DM, DM’s daughter, the Haverhill Police Prosecutor, DI, and DI’s sister. Attorney Lewin presented (electronically) to the Clerk-Magistrate the photographs of the window, the hallway, and of DM himself with his walker. Attorney Lewin also presented to the Clerk-Magistrate DM’s medical records showing his disability. Attorney Lewin also presented to the Clerk-Magistrate the incident reports showing that DI herself had on prior occasions acted belligerently towards another resident at the facility.

May 18, 2022

Possession of Heroin -NO Complaint Issued

by Robert D. Lewin

On February 17, 2022, AZ (not the person’s real initials), a 29 year old carpenter foreman for a large construction company, drove to Andover to purchase heroin. He drove to the parking lot of a popular business off Route 93 – a parking lot that is well known to the Andover PD and the State Police as a place where drug transactions are often completed. AZ, then having spoken to his supplier on the phone, drove to a large apartment complex (in Andover) and purchased a small quantity of heroin. AZ then returned to the parking lot (!) and prepared to ingest (by snorting). A plain clothes police officer observed all of AZ’s comings and goings. The officer had actually followed AZ from the parking lot to the apartment complex and then back to the parking lot. The officer then approached the passenger side and looked in (NOT illegal). The Officer saw AZ looking down at his knees. The police report reads: “I observed in plain view, AZ holding a small cut orange straw and had a clear hard plastic object on his lap area that held a visible line of tan powder”. The police had conversation with AZ, seized the drugs, but sent AZ on his way and told him he would receive paperwork to go to court. Shortly thereafter, unbeknownst to AZ, the DEA came in and arrested AZ’s supplier at the apartment complex.

AZ had a prior arrest for Possession of Heroin in NH and could not afford a conviction here in MA.

AZ consulted with and retained Attorney Robert Lewin from Andover. Attorney Lewin explained to AZ that Attorney Lewin would take care of the case and that it was AZ’s job to get off the Heroin. AZ sought out a counselor for depression and went cold turkey getting off the Heroin. Attorney Lewin advocated on AZ’s behalf with the Andover PD.

May 18, 2022

Unlicensed Operation Charge DISMISSED at Clerk-Magistrate Hearing

by Robert D. Lewin

AU, a 24 year old architect, moved from Wisconsin to North Reading, MA in early 2021. On December 10, 2021, AU was involved in an accident in Peabody. The police responded to the scene and AU produced his Wisconsin license. When the police asked how long he had been living in MA, AU responded that he had been in MA since the beginning of the year. The police cited AU for unlicensed operation. AU’s work involves certain security clearances and he could not afford to have a criminal record.

AU consulted with and retained Attorney Robert Lewin from Andover. AU immediately went to the Registry (RMV) and got a MA license. AU also immediately requested a Clerk-Magistrate hearing.

Attorney Lewin went over to the Peabody District Courthouse and met personally with the Peabody Police Prosecutor. Attorney Lewin showed the prosecutor that AU had obtained a MA license.