DWI/OUI

November 28, 2022

DUI: Know when to hold ’em; Know when to fold ’em

Part of good lawyering is knowing when to advise a client not to go to trial. There are just some cases where the facts are terrible and the client has no hope of winning – and both the lawyer and the client know that after trial the client will get a stiff punishment. LS, a 60 year old accountant, had gone to a restaurant/bar for an evening out with friends. Prior to going to the restaurant LS had had several drinks and she brought a plastic bottle in her car with her filled with Vodka. At the restaurant LS had several more drinks. At closing time LS and four of her friends all got in LS’s car and she headed back to drop off the friends. She was driving on a road in Westford, failed to negotiate a turn in the road, struck a utility pole – cutting the pole in half – and then smashed head on into a stone wall. Two of the women in the car were injured and had to be taken to a hospital. The other two women had only minor injuries. LS was not injured. The police, ambulances, and fire trucks all responded to the scene. The police spoke with LS and immediately saw signs of intoxication. Field sobriety tests were administered and she did not do well. The police arrested LS and at the station she blew a .16, which is twice the legal limit. This was her first offense.

LS consulted with and hired Attorney Robert Lewin from Andover. Attorney Lewin fully investigated and fully prepared the case and reviewed all the police reports and witness statements with LS. Attorney Lewin explained to LS all her options in detail. She could fight the case and have a trial or she could work out a plea. The bare minimum penalty for a first offense OUI is a continuance without a finding for 1 year with a 45 day loss of license and completion of the first offender DUI program. That is the typical first offense disposition in a case with no accident and no injuries. When you add in an accident and injuries to two passengers the penalties typically go up. Instead of a continuance without a finding, the DA (and some Judges) sometimes want a guilty finding. Instead of a 45 day loss of license, the DA (and some Judges) want a longer loss of license. And in a case with bad injuries the DA and the Judges may want a suspended jail sentence or sometimes a committed jail sentence. Attorney Lewin explained all this to LS. Without hesitation, LS told Attorney Lewin that she wanted to work out a plea in the case. LS made it very clear to Attorney Lewin that she did not want to go to trial.

Attorney Lewin contacted LS’s insurance company to make certain that all the injuries to people (the two injured passengers) and damage to property (the utility pole and the stone wall) would be paid for by the insurance company. This helps in negotiations with the DA. Attorney Lewin then met with the Assistant DA and gave the DA background information about LS.

December 19, 2021

Operating Under the Influence Trial – NOT Guilty

by Robert D. Lewin

On the Friday after Thanksgiving 2020, SP, a 32 year old electrical engineer from Dorchester, and his girlfriend spent the day visiting with family and friends. The last stop was with family in Haverhill where they visited from about 7:00 pm to 11:00 pm. They left the house in Haverhill and headed back toward Boston. SP was driving and his girlfriend, who had had quite a bit to drink, quickly fell asleep. As SP was driving down I-93 South a State Police Officer was at the side of the road operating a lidar speed gun. SP was timed at 81 mph. The trooper began a pursuit and got behind SP and put on his blue lights. SP moved from the left lane across the middle lane to the right lane. According to the Trooper SP hesitated and finally pulled into the breakdown lane and stopped. According to the Trooper SP had traveled 1/2 mile after being signaled to stop before finally coming to a stop.

The Trooper then approached the passenger side of the vehicle and immediately observed an open 12 pack of White Claw alcoholic seltzer on the floor of the front passenger seat and he noticed an open 12 oz. can of Seltzer leaning against the center console on the passenger side. The passenger was sleeping but awoke when the trooper knocked his flashlight against the window and shined the light inside the car. SP put the passenger window down and the Trooper immediately noticed a strong odor of liquor coming form the car. According to the Trooper SP’s “eyes were glassy and red and he spoke with a thick tongue in a very slow demeanor as if he was heavily contemplating his response prior to answering any questions”. When the Trooper asked SP where they were coming from the Trooper wrote in his report that SP “looked at me with a blank stare on his face”. The Trooper asked SP to step from the vehicle and according to the Trooper SP stated “What if I don’t?” The Trooper then opened the car door and SP got out. According to the Trooper SP was unsteady and lethargic as he walked. The Trooper placed SP under arrest and placed him in the back of the police cruiser. Upon arrival at the State Police Barracks in Andover, SP was removed from the police car and brought up the flight of stairs to the rear entrance into the station. According to the Trooper as SP climbed the stairs he bounced “his left shoulder off the wall for balance near the top of the staircase”. SP was then booked, fingerprinted, refused the breath test, and was subsequently released. His girlfriend had also been brought to the barracks. She called her parents (in Mendon, MA!) who drove up to Andover to post the $40 bail and pick up their daughter and SP. They all left the station.

SP went to Lawrence District Court the following Monday where he was arraigned and his case was continued for a pre-trial hearing. SP sought out a lawyer. SP met with and retained Attorney Robert Lewin from Andover. Attorney Lewin immediately filed a Motion for copies of all recordings made by the police – all body cams, all dash cams, and all videos from the police station. There were no body cams and there were no dash cams. But there was a video from the booking room. The booking room video was an hour and eight minutes long. It was silent; no sound. It began when SP entered the booking room from the top of the stairs and it ends with SP leaving the booking room to exit the station. Attorney Lewin watched and studied the video. It was EXCELLENT. When SP stood and walked there was NO unsteadiness. He sat – in words that Attorney Lewin used during the trial – like a Sphinx. He did not fidget or sway or move. Attorney Lewin also interviewed SP’s girlfriend’s parents as they would be witnesses during the trial. Due to there not being any jury trials due to covid, the trial weas delayed, but finally took place on December 15, 2021 in Courtroom 5 in Lawrence District Court. In the week leading up to the trial Attorney Lewin had two trial prep sessions with SP and his girlfriend (via zoom) and one trial prep session with SP’s girlfriend’s parents. Attorney Lewin practiced with all of them and advised them of the types of questions they would be asked by the DA. This avoids any surprises.

August 15, 2020

OUI Drugs Charge and Negligent Operation Charge Defeated At Clerk-Magistrate Hearing

by Robert D. Lewin

On Wednesday, January 29, 2020 at about 2:30 in the afternoon, BW, a 27 year old Registered Nurse, was driving on the Mass. Turnpike on her way to Connecticut. The State Police received numerous calls from motorists on the Turnpike that her vehicle was weaving on the roadway. A State Trooper pulled in behind her vehicle and observed it go from the left hand lane into the median of the highway kicking up debris. The Trooper put on his emergency lights and BW pulled to the right and, after signalling with her right blinker, pulled across the highway and off to the right into the breakdown lane and stopped. The Trooper pulled in behind her and approached her vehicle. The Trooper made observations of BW and then had her exit her vehicle and perform certain roadside assessments which according to the Trooper she failed. The assessments included a one legged stand, a nine-step heel to toe walk, a balance test, and a horizontal gaze nystagmus test. According to the officer she failed all the tests. In BW’s open purse the officer observed a prescription bottle of gabapentin, a prescription medication for nerve pain. The officer charged BW with operating under the influence of drugs, specifically gabapentin. The officer also charged BW with Negligent Operation.

BW consulted with many lawyers. On February 16, 2020 BW had a two hour initial consultation with Attorney Robert Lewin from Andover. The OUI Drug statute in Massachusetts is a very detailed and specific statute. It defines in very specific terms the types of drugs that trigger the application of the law. Gabapentin, which is a depressant substance (it depresses electrical activity in the central nervous system and is used to treat seizures and nerve pain) at first glance would appear to be a drug that triggers the OUI Drug law. BW and Attorney Lewin discussed the law in detail. BW retained Attorney Lewin. For BW it was important that she win; if she were to be charged and/or convicted her Nursing License could be in jeopardy.

Attorney Lewin thoroughly researched the law and the science. The Massachusetts OUI Drug law makes it unlawful to operate a motor vehicle on a public way while under the influence of a narcotic drug or a stimulant or depressant substance as defined in the law. The law sets out a very technical definition of depressant substance. Attorney Lewin thoroughly researched the science and the law and was able to establish that gabapentin – although it was a depressant substance – did not meet all the requirements of the law; specifically the law required that the substance be “designated by regulation of the U.S. Attorney General as having a potential for abuse”. Attorney Lewin did a thorough research of the Federal Regulations and it turns out that the US Attorney General has NOT so designated gabapentin. Attorney Lewin informed BW of his findings and told her that she was going to win her case.

October 4, 2019

OUI DRUGS & RECKLESS OPERATION CHARGES DISMISSED AT CLERK-MAGISTRATE HEARING

by Robert D. Lewin

On August 31, 2019, UN, a 21 year old college student was driving his car in Beverly, MA when he veered off the road and struck a tree head on. The police responded to the scene (along with a group of neighbors). UN was behind the wheel and appeared to be drifting in and out of consciousness. His pupils were extremely dilated. In the car the police found an open container of beer along with what appeared to be a “drug pipe” (as described in the police report). Two doses of Narcan were administered to UN and he responded. He was brought to Beverly Hospital. The police cited UN for OUI Drugs and Reckless Operation. In addition, the Police also served UN with a Notice of Immediate Threat. A notice of Immediate Threat is a notice that the police send to the Registry of Motor Vehicles to request the RMV to suspend a person’s license because the person (for either a medical reason or some other reason) poses a threat to the public if they operate a motor vehicle.

UN insisted that he had not consumed any drugs or any alcohol. UN (and his family) sought out a lawyer. UN and his Mother had an initial free consultation with Attorney Robert Lewin from North Andover. The consult ran over two hours. UN and his family hired Attorney Lewin.

Attorney Lewin told UN that the Hospital Report would be critical to defending this case – and it was. Attorney Lewin directed UN to go to the hospital and obtain a copy of the complete hospital report – including most importantly all the blood test results and all the urine test results. Sure enough, the test results showed NO alcohol and NO controlled substances -in particular NO opiates. The case became a slam dunk at that point.

December 4, 2018

OPERATING UNDER THE INFLUENCE 2nd OFFENSE – NOT GUILTY

by Robert D. Lewin

On June 24, 2018 at about 1:20 AM a Gloucester Police Officer was on routine patrol in Gloucester when he noticed a van stopped on the side of the road. The van was stopped in a no stopping/no parking area. The officer stopped and went over to the van. There was a man who appeared to be passed out in the driver’s seat. The van was running; the lights were on. The officer attempted to wake the mam by knocking on the window. After about two minutes of knocking and yelling at the man the man woke up. The officer opened the door to the van and there was a heavy odor of an alcoholic beverage. The officer asked the man if he knew where he was and the man responded “Malden”. The officer engaged in conversation with the man and noticed that the man’s speech was slurred, his eyes were glassy and bloodshot, and there was an odor of alcoholic beverage coming from the man’s breath. The officer had the man get out of the van and proceeded to perform field sobriety tests. There was a 9 step heel to toe walk, a one legged stand, and an alphabet test all of which – according to the officer – the man failed. The man was arrested and brought to the police station where he took a breath test and blew a .19 (over twice the legal limit of .08). The police then did a criminal record check and discovered that the man had a prior DWI. In fact the man had just one week earlier completed his probation on the first offense. The police charged the man with a DWI 2nd Offense.

The man, whom we shall refer to as DE, was released from the police station and went to court in Gloucester the following morning for an arraignment. His case was continued to July 30, for a pre-trial hearing. DE then consulted with Attorney Robert Lewin from North Andover. The initial consultation – which was free and with no obligation – lasted almost two hours. Attorney Lewin was encouraged that the case could be won at trial. DE retained Attorney Lewin. Attorney Lewin filed the necessary discovery motions and learned that the police had no video recordings of DE either on the street (no body cams or dash cams) or in the station (no booking videos). In addition Attorney Lewin explained to DE that if DE’s case could be tried quickly the breath test results would not be used. (There is a statewide challenge to the breath test machine and at present the District Attorney in Essex County is not using the results at trial.). On July 30, 2018 DE and Attorney Lewin appeared in Gloucester District Court and the case was set down for trial by jury on November 27, 2018 in Peabody District Court. (Jury Trials from cases in Gloucester District Court are held in Peabody District Court.)

Between July 30 and November 27, 2018 DE and Attorney Lewin met in Attorney Lewin’s Office on several occasions for trial preparation. Attorney Lewin thoroughly prepared DE to testify at trial. Attorney Lewin played the role of the Assistant District Attorney and cross examined DE. DE was ready to testify when the trial date arrived. On November 27, 2018 the case was called for trial but had to held one day to accommodate a case that was already being tried. On November 28, 2018 the trial began and Attorney Lewin went on the attack against the Commonwealth’s case. The facts are not always what they seem. DE was not “passed out” but merely asleep from having worked that day. The van was in park and was left running because it was a hot summer night and DE wanted the air-conditioning on. The van was not stopped in the middle of the road but was parked at the curb and the gearshift was in park. DE testified at the trial that he performed well on the field sobriety tests. Attorney Lewin was able to present to the jury that there is a sign prominently displayed in the booking area of the Gloucester Police Station that reads (in big red letters) ‘YOU ARE BEING VIDEO AND AUDIO RECORDED”. Attorney Lewin confronted the Gloucester Police Officer with a picture of the sign and asked the officer “Where is the recording?” The officer said there is no recording. Attorney Lewin hammered on this point and an observer could see that the Jury did not believe the police testimony that there was no recording. The trial went over to a second day. On November 29, 2018 the Jury went out to deliberate and after one hour and fifteen minutes the jury returned with a NOT Guilty verdict.

November 15, 2018

OUI LIQUOR CHARGE DISMISSED IN LYNN DISTRICT COURT

by Robert D. Lewin

On April 21, 2018, JR, a 31 year old administrator, was on his way home to Lynn when he got stopped at a State Police Roadblock in Saugus on Route 107 (the Lynn Marsh Road). He entered the roadblock, had a brief interaction with the greeter, and was then directed into the testing area. Field sobriety tests were administered and he was arrested and charged with one count of operating under the influence of intoxicating liquor. He refused a breathalyzer test. JR went to court and got arraigned and then interviewed several lawyers. JR then retained Attorney Robert Lewin from North Andover. Through filing the appropriate discovery motions Attorney Lewin was able to obtain all the State Police Roadblock Documents for that particular roadblock. Roadblock law is a very detail oriented area of the law. The police have to dot all the i’s and cross all the t’s. Attorney Lewin – after reviewing the police reports and the roadblock documents – found a problem with the police greeter at the roadblock. The greeter was not using a state approved greeting. Attorney Lewin prepared and filed a Motion to Suppress all the evidence that the police had gathered after the stop of JR’s car in the roadblock on the grounds that the greeting being used by the greeter did not meet the requirements of the roadblock law. On October 11, 2018, after a full hearing at which the State Police greeter testified, the Judge agreed with Attorney Lewin and ordered that ALL the evidence gathered by the state police be suppressed (not used). This left the Commonwealth with no evidence. Attorney Lewin then filed a Motion to Dismiss and on November 12, 2018 JR and Attorney Lewin appeared in Lynn District Court and the Judge granted the Motion to Dismiss and the charge was ordered DISMISSED.

JR, who had just become a father, gave Attorney Lewin and big handshake and left the Court a very happy man.

August 28, 2018

DWI TRIAL NOT GUILTY VERDICT IN PEABODY DISTRICT COURT

by Robert D. Lewin

On May 4, 2018 BJ, a 29 year old mechanical engineer, left work at 5:00 PM and drove to a friends home in Lynn, MA to watch a Bruins playoff game. BJ was at the friend’s home from 5:30 to 10:30. At 10:30 BJ left his friend’s home and headed home. He traveled Route 129 from Lynn and was headed ultimately to his home in Andover. He came to the large interchange at Routes 129, 128, I-95, and 1. A state police officer was headed to the interchange from I-95 and as the two vehicles approached one another at a merge point the Trooper claimed that BJ failed to yield (there were 2 yield signs in the lane that BJ was traveling on). The Trooper said he had to slam on his brakes to avoid a collision with BJ. The Trooper then followed BJ and ultimately pulled him over as he took the ramp down onto Rt. 95 South.

The Trooper administered a series of field sobriety tests all of which the Trooper claimed that BJ failed. BJ was arrested and brought to the State Police Barracks in Danvers where he was booked. BJ spoke with his wife on the phone and asked her to come to the Barracks with $40.00 for bail. After two hours BJ was bailed out and went home with his wife.

BJ went to court for an arraignment and then consulted with and hired Attorney Robert Lewin from North Andover to represent him. Attorney Lewin took a detailed statement of the facts from BJ and his wife. A number of field sobriety tests had been administered to BJ and it was clear to Attorney Lewin that BJ had done extremely well on the tests. The case was set down for trial on August 28, 2017. Attorney Lewin and BJ and his wife had several long trial preparation sessions. Attorney Lewin thoroughly prepared BJ (and his wife) to testify on both direct examination and cross examination. Attorney Lewin did a “mock trial” (a practice trial) in the office with BJ.

July 17, 2017

Operating After Suspension for DUI: Mandatory Sentence and Mandatory Loss of License Avoided

by Robert D. Lewin

On April 27, 2017 TL, a 40 year old immigrant from Laos who is now a citizen, admitted to sufficient facts to an OUI first offense in Lowell District Court. The Judge continued the case without a finding and placed TL on probation for one year and suspended his license for 45 days. TL was eligible to get a hardship license but did not. On May 10, 2017, during the 45 day license suspension period, TL was driving to work when he got pulled over by the police in Ayer. The police arrested TL and charged him with operating after suspension of his license where the suspension was for an OUI case. A conviction under this law carries (1) a maximum sentence of 2 1/2 years and a mandatory minimum sentence of 60 days in the House of Correction and (2) an additional one year loss of license. TL was brought to Ayer District Court where he was arraigned and held and then transported to Lowell District Court where he was served with a notice of probation surrender and detention. In Lowell District Court, TL faced his continuance without a finding being revoked, a guilty finding being entered, and a sentence of up to 2 1/2 years being imposed along with a one year loss of license. Prospects looked very grim for TL. TL – in jail – asked his wife to find him a lawyer.

TL’s wife consulted with and retained Attorney Robert Lewin from North Andover. It was apparent to Attorney Lewin that none of TL’s problems would have arisen had he simply applied for the hardship license. Attorney Lewin went to the jail and met at length with TL. It appeared as if TL’s lawyer in the original case in Lowell had not advised TL about getting a hardship license so he could lawfully drive during the 45 day period.

Attorney Lewin went to Lowell District Court and met with TL’s Probation Officer. Attorney Lewin explained the situation to her and she responded very favorably to Attorney Lewin’s request to simply reprobate TL.On June 6, 2017 TL and Attorney Lewin appeared in Lowell District Court before Judge Fortes – a very tough District Court Judge. The probation officer came into the Courtroom and agreed with Attorney Lewin’s request that although TL violated probation that the Judge should simply put him back on probation (with the continuance without a finding still in place with no changes in the probation and no additional loss of license). The Judge adopted the request and the probation violation went away with no negative effects for TL.

January 9, 2017

Hit & Run and False Report to An Insurer Charges Avoided

by Robert D. Lewin

DT is a 29 year old software developer from India in the US on a work visa. On December 10, 2016 he went out for a few drinks and on the way home crashed his car in Lowell. The Lowell police responded to the accident scene and DT gave the police a story that he was too drunk to drive and another fellow (whom DT did not know) was driving the car and that other fellow took off after the accident. The police did not arrest DT nor did they cite him. The next day he gave the same report to his insurance company. About a week later DT received a letter from the Lowell Police saying that they were investigating his accident and they had video evidence that he was in fact the driver. The letter indicated that the police were contemplating charging him with DUI and making a false statement to a police officer and hit and run. (A hit and run charge in Massachusetts can be based on a driver’s failure to identify himself as the driver at the scene of an accident.) DT’s insurance company contacted DT about his “story” and expressed concerns about the veracity of DT’s story. (Making a false insurance claim is a criminal offense.) DT contacted Attorney Robert Lewin of North Andover. Attorney Lewin explained to DT that Attorney Lewin knew the Lowell officer in charge of his investigation. Attorney Lewin explained to DT that the best thing to do in DT’s situation would be for DT’s lawyer to quickly communicate with both the Lowell Police Officer and the representative for the insurance company. DT told Attorney Lewin that DT had spoken to numerous lawyers and had gotten all kinds of advice but that Attorney Lewin was the first lawyer who set out a plan of action and was prepared to move on it immediately before things got worse. DT retained Attorney Lewin.

Within 2 hours of being retained Attorney Lewin had DT’s entire situation resolved. Attorney Lewin called the Lowell Police and spoke with the officer in charge of the investigation. The officer agreed that DT would not be charged with any criminal offenses arising out of the accident or his false statement to the officer at the scene of the accident. Attorney Lewin then spoke with a representative from the insurance company. The insurance company then not only agreed not to seek a criminal charge against DT for filing a false insurance claim but the company agreed to pay DT for the complete loss of his vehicle!

Attorney Lewin explained to DT the old adage: “When you find yourself in a hole, stop digging.” DT kept getting himself in deeper and deeper with his stories. By jumping on the case immediately and by contacting the police and the insurance company immediately, Attorney Lewin was able to avoid DT from being prosecuted and from being deported. DT is now a happy camper.

January 9, 2017

Warrants for Two Old DUI Cases Cancelled and Cases Dismissed

by Robert D. Lewin

In May of 1984 KW, then age 24, was arrested in Andover for Operating Under the Influence of Liquor and several other criminal offenses. One month later in June of 1984 KW was arrested again for Operating Under the Influence of Liquor in Wakefield. KW then flew the coop; he left Massachusetts and has been living in Arizona ever since. Warrants for KW’s arrest were issued in both Lawrence District Court and Malden District Court. He was able to get an AZ license and for years ignored the two warrants in MA. Recently Arizona refused to renew KW’s AZ license because he was under suspension in MA because of the two warrants. KW was hesitant to return to MA for fear that he would get locked up – particularly when he went to the first court to get the warrant cleared. He feared that the Judge in the first court would order him put into custody and held for the second court.

KW contacted Attorney Robert Lewin from North Andover. Attorney Lewin explained to KW that if he ever wanted to drive legally again he would have to get these warrants and the cases cleaned up. KW retained Attorney Lewin. Attorney Lewin was able to get the papers from both courts. The police officer in the Wakefield case retired just four months ago; however, no police report could be found in the Wakefield case. The police officer in the Andover case had retired almost ten years ago, but he was still around(!) and he had the police report from the case!!

On November 21, 2016 KW and Attorney Lewin went into Malden District Court and the Judge ordered the Malden Court warrant cancelled. The Malden Court case was then continued to December 2, 2016 to give the DA one last opportunity to see if they could put the case together. The Judge did not lock KW up on the warrant for Lawrence District Court but allowed KW to go with Attorney Lewin to Lawrence. Two hours later KW and Attorney Lewin appeared in Lawrence District Court. As in Malden District Court, the Judge ordered the warrant in Lawrence District Court cancelled and that case was continued to the same December date.