Articles Posted in Probation Surrender Hearings

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In March of 2019, JF, a 47 year old single father of two disabled children living in AZ contacted Attorney Robert Lewin of Andover, MA. JF had eight warrants outstanding – all in Malden District Court. The warrants dated back to 2008 and 2009. As a result of the warrants JF’s right to drive had been suspended by the Massachusetts RMV. That suspension had been entered into the National Driver Register and as a result JF had not been able to renew his AZ license since 2010. JF asked Attorney Lewin to look into the warrants and advise him. Attorney Lewin went to Malden Court and was able to get all the papers from the eight cases. In four of the cases, JF had plead guilty back in 2008 and had 3 suspended sentences hanging over his head: there was a 1 year suspended sentence, a 6 month suspended sentence, and a 3 month suspended sentence. All of the cases were convictions for violating an abuse prevention order. In addition, JF had 4 additional cases – all for violation of an abuse prevention order – on which he had never been arraigned.  [JF’s former wife had obtained an abuse prevention order against JF and JF violated the order 8 times.].

JF was in trouble. He had left the state in violation of his probation; he had failed to report to probation; he did not enroll in or complete the batterers program as ordered; and he continued to violate the abuse prevention order after being placed on probation. His probation officer was still working as a probation officer in 2019; she remembered the case, and she wanted his probation to be revoked and the 1 year suspended sentence to be put into effect. She wanted him to do a year in jail.

The District Attorney’s Office wanted a piece of his skin as well; on the cases on which he had not yet been arraigned they wanted him to do an additional 9 months.

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On November 18, 2018, AG, a 61 year old man from Lawrence, was driving a vehicle he had recently purchased. He had attached plates to the vehicle that were assigned to another vehicle that he owned. He had not registered or insured the new vehicle. As luck would have it he went through a red light directly in view of a police car and got pulled over. AG got charged with Failing to Stop for a Red Light, Attaching Plates to conceal the identity of a motor vehicle, Operating an Uninsured Vehicle, and Operating an Unregistered Vehicle. The big problem for AG is that he is a convicted sex-offender and he is on Probation. On April 13, 2006 he was convicted of two counts of Indecent Assault & Battery on a child and Indecent Exposure. He served three years in jail and is on supervised probation until April 2019.

AG received a court summons from Lawrence District Court for an arraignment on the new charges. The arraignment was scheduled for January 25, 2019. On January 7, 2019 AG consulted with and retained Attorney Robert Lewin from North Andover. On January 8, 2019 Attorney Lewin went over to Lawrence District Court and obtained copies of all the court papers. Attorney Lewin then went to the District Attorney’s Office and met with an Assistant District Attorney to see if the DA’s Office would be willing to dismiss the new criminal motor vehicle charges. Attorney Lewin explained that a conviction could cause AG’s Probation to be revoked and he could be sent back to prison after being clean for 13 years. Attorney Lewin also explained that on the day after being stopped by the police AG immediately got the new car insured and registered. The DA agreed to dismiss the new charges upon the payment of $400 in Court costs. Attorney Lewin then went and spoke to AG’s Probation Officer and he agreed that he would not press for any action on the probation.

On January 9, 2019 (before anyone could or would change their mind) Attorney Lewin brought AG to the Court and had the arraignment moved up from January 25 to January 9. On January 9, 2019 AG and Attorney Lewin appeared before the Judge in Lawrence District Court and at the joint request of Attorney Lewin and the District Attorney the Judge ordered the charges DISMISSED upon the payment of $400 in Court costs. AG paid the $400 immediately and the charges were dismissed. The probation officer was satisfied and did not issue a notice of alleged probation violation. AG’s probation is due to end on April 12, 2019.

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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.

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On April 8, 2015, ET, a 31 year old cable installer from Melrose, was placed on probation for two years in Lowell District Court for a second offense DUI case.  His probation included terms that he obey all criminal laws, that he complete the two-week in-patient second offender program, that he complete 26 weeks of aftercare, and other conditions as well. His probation was going well. He completed the two weeks in-patient and he completed his aftercare. In addition he was not driving. And then on February 27, 2016 the lure of the alcohol got to him. He went into Boston to a bar and got roaring drunk. Fortunately for him he was not driving. Unfortunately for him he got on the T and headed back to Melrose to his home. When the train got to the last stop in Melrose he went nuts. He broke a window on the train and then took out his private and urinated on the floor of the train. The police came and arrested him and charged him with Disorderly Conduct, Malicious Destruction of Property, and Indecent Exposure. On February 29, 2016 he was arraigned in Malden District Court on these new charges and when they saw that he was still on Probation in Lowell District Court he was ordered to appear in Lowell District Court the next day. ET called Attorney Robert Lewin in North Andover and retained Attorney Lewin to appear with him the next day in Lowell District Court. ET was concerned that he would be detained (held without bail) in Lowell District Court on the alleged violation of probation. Attorney Lewin contacted the probation officer; the probation officer was both surprised and disappointed with ET as he felt that ET had been doing well on probation. Attorney Lewin got probation to not ask that ET be detained. ET and Attorney Lewin appeared in Lowell District Court that next day and ET was arraigned on the probation violation and the case was continued for a final probation surrender hearing to March 24, 2016. ET was released on personal recognizance. Attorney Lewin told ET that he had to get mental health counseling for his obvious alcoholism. ET followed Attorney Lewin’s suggestion and started seeing a counselor. On March 24, 2016 ET and Attorney Lewin returned to Lowell District Court for the final probation surrender hearing. ET was facing a potential 2 1/2 year sentence to the House of Correction. Attorney Lewin had advocated hard with the Probation Officer to give ET an additional chance to avoid jail. The probation officer agreed that counseling was a better outcome than jail. ET’s case was called in the First Criminal Session and the Judge, after a hearing, agreed with Attorney Lewin and the probation officer and re-probated ET with the added conditions that he remain in mental health counseling and that he now remain alcohol free and be subject to random breath testing by probation. ET was extremely relieved that no jail time was imposed. Now ET has to deal with those new charges in Malden Court. More to follow …

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On February 26, 2013 KD, a 35 year old carpenter, was arrested for Distributing Cocaine and for Being Present where Heroin was found. On April 24, 2013 KD went to Lawrence District Court and the Cocaine distribution charge against him was continued without a finding for 18 months. The heroin charge was dismissed. KD was ordered to participate in a drug treatment program, to remain drug and alcohol free, and to be subject to random drug and alcohol testing. Shortly after the court date KD left the drug treatment program and for three months was among the missing. He did not report to probation; he was not being drug screened and he did not participate in the drug treatment program. He learned that there was a warrant outstanding for him and he turned himself into the court. The probation officer wanted to drug test him that day at Court and KD said that he was physically unable to urinate in the presence of another person. KD then went to the bathroom unattended and came back with a cigarette package full of urine that he claimed was his own. He got sent to Middleton Jail for a week. During the entire week at the jail he was unable to urinate in the presence of another person.

KD’s wife contacted Attorney Robert Lewin. Attorney Lewin went to the jail and met with KD and carefully documented KD’s complaint about being unable to urinate in the presence of another person. After 1 week in the jail it was clear to everyone that he was clean yet he still could not urinate in the presence of another person.

Attorney Lewin researched this issue and learned that Paruresis is a recognized medical syndrome of people who are unable to urinate in the presence of another person. The Probation Department was insisting that he submit to random drug/alcohol screening through the Essex County Office of Community Corrections (OCC). OCC will only do urine screening. Attorney Lewin researched other screening methods and proposed saliva screening. Saliva screening drug/alcohol kits are available for about $10.00 per kit (1 test per kit). KD ordered several kits and brought one into Probation. It took the probation officer about 30 seconds to read the instructions. A saliva test was administered to KD and he tested negative for alcohol and drugs. The probation officer liked the test; it was quick and easy and did not involve handling urine.

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On December 3, 2009 MS, then 20 years old, was convicted of Assault & Battery with a Dangerous Weapon and Armed Home Invasion in Salem (MA) Superior Court. On the A&B D/W charge she was given a 2 1/2 year sentence to the House of Correction: 18 months to be served and the balance (1 year) suspended to August 2013. On the Home Invasion charge, which carries a 10 year mandatory minimum sentence to State Prison, she was given probation to August 2013. She served 9 months of the 18 month sentence and was paroled.

On April 22, 2013 MS – 4 months prior to the date her probation is to end – MS got arrested for a DUI in Haverhill. She blew a high breathalyzer. One of the conditions of her probation was that she was to remain alcohol free. She was clearly in violation of probation. MS was very frightened that her probation in the Superior Court would be revoked and that the Judge would sentence her to finish the one year suspended sentence that was still hanging over her head – not to mention the 10 year State Prison sentence that was hanging over her head.

MS was also concerned about the DUI case; her concern was that the Judge in Haverhill District Court would see that she was on probation for a very serious crime and that the Judge in Haverhill would give her a harsh sentence.

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In 1991, at the age of 18, AR set fire in a school building. He was charged with Arson and two counts of possession of an explosive device. He was indicted by the Middlesex County Grand Jury and in February 1993 he appeared in Middlesex Superior Court and was given three 10 year sentences to MCI Concord; the sentences were suspended and he was placed on probation for three years. While he was on Probation he was subsequently arrested for two counts of operating on a suspended license, one count of possession of a class D substance, and five counts of larceny. All those new cases happened in 1995 and they were all in Framingham District Court. Fearing that his probation in Superior Court would be revoked and that he would be sent to State Prison for his three 10 year sentences, AR went on the run. Warrants for AR’s arrest were issued from both Middlesex Superior Court and Framingham District Court. Years went by; he moved to Vermont; he married; he had two children; and he accumulated an Assault charge in Vermont and two DUI convictions in Vermont. The last DUI conviction was in April 0f 2012. In April of 2012 AR vowed to get his life on track. He got into alcohol abuse treatment. He joined AA. Vermont told AR that he could not get his driving privileges reinstated unless and until he faced the music in Massachusetts. AR contacted Attorney Robert Lewin. Attorney Lewin went to Framingham District Court and Middlesex Superior Court and obtained copies of all the papers in AR’s cases. It turned out that not only did he have three ten year suspended sentences in the Superior Court but he also had a suspended sentence in Framingham District Court. But 18 years had passed and although he had not been trouble free he was now in treatment for his alcoholism and was doing well. A letter was obtained from his Probation Officer in Vermont; a letter was obtained from his Alcohol Counselor in Vermont; a letter was obtained from his present employer and his previous employer; attendance slips from AA were obtained; and a letter was obtained from his wife that attested to AR’s commitment to sobriety. Attorney Lewin had lengthy conversations with the Probation Officer in Framingham District Court and the Probation Officer in Superior Court. On Wednesday, March 20, 2013 AR and Attorney Lewin (and many members from AR’s family) walked into Framingham District Court. After a hearing all the warrants in Framingham District Court (6) were ordered cancelled, AR paid $2,148.16 in court fees and restitution, all of his cases were ordered closed. After 18 years he walked out of Framingham District Court. On Thursday, March 21, 2013 AR and Attorney Lewin walked into Middlesex Superior Court. His cases were sent up to a Judge in a criminal session. The Judge was given all the police reports about the explosive devices and the setting fire in the school from 1991. The Judge saw that AR had been given three 10 year suspended sentences with probation. The Judge also read all the letters that had been furnished by Attorney Lewin. Attorney Lewin made a simple but direct plea to the Judge. AR’s offenses had occurred 21 years ago; although he had not been trouble free during the 21 years he now seemed to be grounded. He had been alcohol free (and had passed every random drug and alcohol test he had been given in Vermont) since his last arrest for DUI in Vermont. He was now married and had two children and was working hard to support his family. Attorney Lewin closed his statement to the Judge by asking the Judge to terminate AR’s Probation and discharge him from any further responsibility in these cases. Before Attorney Lewin could sit down the Judge said one word “Done”. After 20 years of living in fear that he would be forced to serve the three ten year sentences AR walked out of the Superior Court in Woburn completely free. When AR and his family walked out of the Courthouse AR and his family burst into tears of relief and joy. He had been so convinced that he was going to have to serve the ten years he could not believe he was free.From the very outset Attorney Lewin had encouraged AR to think positively and to go about the business of getting letters that would help. As Attorney Lewin turned to leave, AR’s father, age 71, came over to Attorney Lewin and and gave Attorney Lewin a firm handshake and a hug and said “It was great to watch a pro in action.” That made Attorney Lewin’s day. Hard work, smart work, and perseverance paid off.

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A Judge in Woburn District Court orders drugs seized during a motor vehicle stop suppressed. MD, a 22 year old woman was on probation in Salem District Court for possession of heroin, cocaine, and class E drugs. While on probation she got pulled over by the Reading Police; a search of her pocket book yielded numerous packets of heroin and several implements for drug use. She was faced with two cases: (1) the new drug possession case brought by the Reading Police in Woburn District Court and (2) a probation revocation proceeding brought by her probation officer in Salem District Court. MD retained Attorney Robert Lewin to handle both cases. The facts leading to the stop of MD’s car were as follows. A Reading Police Officer was on patrol in an area of Reading where there had been reports of suspicious activity at a house on a particular street. The Officer testified that he had received reports of numerous cars coming and going at a house on a named street. One night at about 10:00 PM the officer observed a black sedan exiting the street. He followed the sedan. The driver (MD) drove slowly and appeared to the officer to be driving “too carefully” so as to avoid being stopped. The officer ran the license plate and was able to determine that the owner of the car was a young woman with an open drug case in Salem District Court. He testified that he observed the woman who was driving stuffing what appeared to be a plastic bag into her purse on the front seat of the car. Based on those facts he pulled her over and searched her purse and discovered heroin. Before an officer can lawfully stop of motor vehicle the officer must have “a reasonable suspicion based upon articulable facts that (the operator) has committed, is committing, or is about to commit a crime”. “A mere hunch is NOT enough” to justify a stop of a motor vehicle. Attorney Lewin filed a Motion to Suppress the evidence discovered by the officer following the stop of the motor vehicle. The Judge in Woburn District Court conducted a full evidentiary hearing at which the Officer and MD testified. After the hearing the Judge wrote a decision in which he ruled that the officer had a hunch, but not a reasonable suspicion. On February 8, 2012 the Judge allowed Attorney Lewin’s Motion to Suppress the drugs. The case is next scheduled for February 29, 2012 at which time the District Attorney’s Office must decide whether to appeal the Judge’s decision or allow the case to be dismissed. In the meantime MD and Attorney Lewin went over to Salem District Court to address the probation revocation proceeding. Attorney Lewin got MD into a drug treatment program (and she is doing well) and the notice of probation surrender in Salem District Court was withdrawn.

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AO, a 22 year old entrepreneur, was on probation for possession with intent to distribute marijuana. With three months left on his two year probation, AO helped a college friend move from one apartment to another. AO used his car to help shuttle the friend’s boxes and suitcases from the old apartment to the new apartment. After the last trip, the friend took his remaining belongings from AO’s trunk, thanked AO for the help and went on his way. Or so AO thought. AO ran some errands and was heading back to his house in Watertown. When he was just 3 blocks from his home in Watertown, a State Police officer pulled him over for speeding. The State Police officer believed that he smelled the odor of burnt marijuana from within the vehicle and ordered AO to get out of the car. The State Trooper searched the car and then the trunk. There was a cardboard box mixed with some of AO’s belongings in the trunk. AO’s friend had left the box in the trunk. The State Trooper asked what was in the box and AO explained that the box was not his. The State Trooper was undeterred and opened the box. The box contained two pounds of high quality marijuana. The State Trooper filed an application for criminal complaint charging AO with possession with intent to distribute marijuana. Because AO was already on probation for the same thing, he faced not only two years on the new charge but also revocation of his probation and a jail sentence up to two years in the old case. In June 2011, AO was summoned to the Waltham District Court for a show cause hearing (sometimes called a Clerk-Magistrate’s Hearing) before a Clerk-Magistrate. The stakes were high, as AO could have been sentenced to two years in jail on each of the two cases if the Clerk-Magistrate issued a criminal complaint. AO retained Attorney Joshua Lewin. Attorney Lewin thoroughly prepared the case for the hearing before the Clerk-Magistrate and made a persuasive presentation at the hearing. After the hearing, the Clerk-Magistrate dismissed the application and did not issue a complaint. Once the new charge was dismissed probation chose not to go forward with a probation surrender. AO walked on both cases and could not have been more thankful for Attorney Lewin’s services.

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In 1992, JB pled guilty to possession of cocaine and heroin in the Lowell District Court. He was sentenced to one year in the House of Correction, but the Judge suspended the jail sentence for one year. This meant that JB would never see the inside of a jail cell so long as he complied with the terms of his probation for one year. During his third month of probation, however, JB left snowy Massachusetts and moved to sunny Florida without getting the approval of his probation officer or the Judge. The Probation Department at Lowell District Court issued a Notice of Surrender for Alleged Violation of Probation and the Court issued an arrest warrant in 1993 for JB. JB never returned, instead establishing himself and a career in Florida. After 17 years living in Florida, however, the law caught up to JB. While attempting to renew his driver’s license, the State of Florida informed him that he had an outstanding warrant in Massachusetts and that Florida would not renew his driver’s license until the warrant was cleared. JB needed his license to work but was scared that the Judge would send him to jail for one year if he returned to Massachusetts. JB called attorney Joshua Lewin and explained the situation. After discussing the case, JB retained Attorney Lewin. Attorney Lewin promptly went to the Lowell District Court and was able to get the warrant recalled without JB having to be present in Court. As a result, JB was able to renew his license in Florida and he was not without a license for a single day. But that was only half the battle, as JB was still facing a one year jail sentence in Massachusetts. Attorney Lewin spoke to the probation department and court prosecutors about the case. On a snowy April morning, JB returned from Florida to Lowell and appeared in front of the Judge with Attorney Lewin. Attorney Lewin persuaded the Judge that it was not in the interests of Justice to send JB to jail. In fact, Attorney Lewin’s argument was so persuasive that the Judge terminated JB’s case entirely and set him free without any punishment. When he came to Massachusetts, JB was facing a one year jail sentence. The only punishment he got was having to deal with a freak New England spring snow storm. That was punishment he was willing to accept. Oftentimes we are able to get the Judges to terminated probation in these old cases without the client having to return to Massachusetts; every now and then, however, we get a judge who insists that the client return to Massachusetts. This was the case here; but when the client did appear the Judge terminated the probation and discharged the client from any further responsibility in the case.

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