TrafficOffenses

May 13, 2014

Operating After Suspension After OUI Charge DISMISSED

On March 14, 2014 EB, a 42 year old RN was observed operating a motor vehicle on the Mass. Pike. The state police ran a random check of the Registration Plate and it indicated that the owner of the vehicle was a 42 year old female whose license had been revoked for two years following a conviction for OUI 2nd Offense in November 2013. The trooper pulled EB over and she immediately confessed to the officer that her license was revoked for two years as the result of her conviction for OUI Second Offense. After considerable pleading by EB the Trooper did not arrest EB but issued her a citation for OAS for OUI (Operating After Suspension where the suspension is the result of an OUI Conviction). The trooper had her car towed from the scene. This offense carries a mandatory minimum sentence of 60 days in the House of Correction, no exceptions.

EB immediately contacted Attorney Robert Lewin. Attorney Lewin directed EB to IMMEDIATELY go to the Waltham District Court and request a hearing. The next day EB went to Waltham District Court and requested a hearing.

EB was a widow and the single parent of a 12 year old son. She worked full time as a nurse and was a cancer surgery survivor. The best hope for avoiding the 60 day jail sentence (maximum 2 1/2 years) was to try to resolve the case at the Clerk-Magistrate Hearing without a criminal complaint issuing. Attorney Lewin reached out to the State Trooper who issued the citation to thank him for not arresting EB, but rather citing her.

March 21, 2014

DUI 4th OFFENSE – DISMISSED

by Robert D. Lewin

On November 8, 2012 in the early afternoon, DB, a 47 year old roofing company foreman, was pulled over by the Malden Police on the basis of an anonymous tip. He had just pulled out of the parking lot of a local bar in Malden where he had been drinking for about one and a half hours. He was asked to exit his vehicle which he did. He was asked to perform field sobriety tests and he refused. He was asked to submit to a breath test and he refused. Based on the observations of his condition by the police he was arrested and charged with operating under the influence. He was brought to the Malden PD where a check of his criminal record revealed that he had three prior convictions dating back to 1984. As a result of his refusing the chemical test he was immediately subjected to a lifetime loss of his license. Massachusetts law imposes a mandatory lifetime loss of license on anyone who refuses a chemical test following an arrest for OUI if that person has three prior convictions for OUI in his lifetime at the time of the arrest. DB also faced a potential 5 year state prison sentence or a 2 1/2 year sentence to the House of Correction. An OUI 4th offense carries a mandatory minimum 2 year sentence of which 1 year must be served before parole eligibility. DB retained Attorney Robert Lewin.
Attorney Lewin immediately got the police reports and reviewed them with great care. Attorney Lewin obtained the turret tapes from the Malden PD to hear the dispatch information that was given out to the officers in the street and in particular to the officers involved in pulling DB’s car over. The stop of DB’s car by the police did not seem right. Before the police can stop a motor vehicle on the roadway they must have a “reasonable suspicion based upon articulable facts that a crime has been, is being, or is about to be committed”. The police were claiming that they had received a “tip” that a man who appeared to be drunk was entering a motor vehicle behind the bar and was headed out onto the street. When the police dispatcher first gave out the call he said that a bank teller had witnessed the drunk man getting into the motor vehicle; when the officers pulled DB over they radioed the dispatcher as to who had given out the tip. The dispatcher radioed back that it was a bank customer. This created a real doubt about whether a tip had actually been received. Attorney Lewin filed a Motion for a Copy of the 911 Tape; no recording (such as a 911 call) of the tip was ever found or produced. Attorney Lewin prepared and filed a Motion to Suppress all the evidence obtained by the police following the stop of DB’s vehicle. This included the identity of DB as the operator of the vehicle and all observations of his condition. On January 6, 2014 (some 14 months after his arrest) there was a full evidentiary hearing in Malden Court on the Motion to Suppress the evidence. The Judge hearing the Motion made the following findings and rulings: “The police had no reasonable suspicion to stop the Defendant’s motor vehicle; the so-called reporting party was never identified; no description of the operator of the vehicle was ever furnished; there was no evidence of any reasonable suspicion to stop the driver of the Defendant’s motor vehicle.” The Judge then granted the Motion to Suppress ALL the evidence the police obtained following the stop of DB on the street. In other words the Judge threw out all the evidence on the grounds that the stop of DB’s motor vehicle was illegal. The Middlesex County DA’s Office filed a Motion to Reconsider which the Judge denied. On March 21, 2014 the DA’s Office filed a “Nolle Prosequi”. A “Nolle Prosequi” is a termination of the prosecution of a criminal case by the Commonwealth. The “Nolle Prosequi” reads as follows: “The motion to suppress was allowed and all evidence was suppressed. As a result, the Commonwealth cannot proceed.” Two hours ago DB and Attorney Robert Lewin walked out of Malden Court. DB, with a big smile on his face, thanked Attorney Lewin and asked Attorney Lewin to send him a copy of the “Nolle Prosequi” so that he could frame it.

September 15, 2013

HIT & RUN CASE DROPPED

by Robert D. Lewin

KU, a 35 year old moving company owner, drove his pick-up truck to the Market Basket supermarket on the Lawrence/North Andover line. As he was pulling out of the parking lot he struck a parked car. He paused but then drove away. He drove home, left the pick-up truck at home, and drove his car to work. Two hours later he got a call from the North Andover Police. A witness had seen the accident and had seen KU leave and got the plate. At first KU denied it but then admitted to the officer that he had panicked and fled the scene. The North Andover Police issued a citation to KU for leaving the scene of a property damage accident. KU called Lewin & Lewin and spoke with Attorney Robert Lewin who told KU to immediately go to the Lawrence District Court and request a Clerk’s Hearing for the citation. KU did that and then retained Attorney Robert Lewin to defend the case.

Attorney Lewin went over to the Court and spoke immediately with the North Andover Police Prosecutor. Attorney Lewin obtained KU’s auto insurance policy to show that the damage to the other car would be completely covered. In addition Attorney Lewin obtained proof from the insurance company that the owner of the other vehicle had been completely reimbursed for his damages by KU’s insurance company. In many of these hit and run cases – particularly if there is no alcohol involved – the main concern of the police is making sure that the owner of the damaged vehicle or property is fully reimbursed. Attorney Lewin furnished all the insurance documents to the Police Prosecutor. Prior to the Clerk’s Hearing Attorney Lewin and the police prosecutor reached an agreement that they would recommend to the Court Clerk-Magistrate that no criminal complaint be issued against KU.

On Thursday, September 12, 2013, KU and Attorney Robert Lewin appeared in Lawrence District Court for the Clerk-Magistrate’s Hearing. Attorney Lewin and the Police Prosecutor explained to the Clerk-Magistrate that the victim had been fully reimbursed. The police prosecutor indicated to the Clerk-Magistrate that the police were satisfied. The Clerk then dismissed the application for criminal complaint. KU – although he was guilty of the offense – walked away without being charged. KU left the Court a very happy man.

May 29, 2013

OUI SERIOUS BODILY INJURY MANDATORY SIX MONTH SENTENCE AVOIDED

by Robert D. Lewin

On August 31, 2012, AS, a 67 year old retiree, went out for a few drinks at a local pub in Haverhill. Late at night he left the pub highly intoxicated, got into his SUV, and tried driving to his home in Methuen. In the center of Haverhill is a War Memorial which is situated on a grass plot. AS drove his SUV off the roadway, over the curb and sidewalk, into the War Memorial area. In the area was a homeless man sleeping a a bench. The front of AS’s SUV struck the bench going up over the bench over the homeless man sleeping on the bench. AS backed his car up and left the area as if nothing had happened. AS continued on his way eventually striking a roadsign and knocking it down. Once again he continued on his way. He travelled from Haverhill into Newton, NH where he drove off the road into a ditch. Witnesses had seen his car drive over the bench with the homeless man and called in his registration plate to the police. Other witnesses saw him strike the sign and called that into the police. A BOLO (Be On The Lookout) was put out by the Haverhill Police and picked up by the Newton, NH Police who had discovered AS in his car in the ditch. AS was removed from his car; he had urinated himself; he was arrested for DUI in NH. The Haverhill and Mass. State Police responded to NH to continue their investigation. It was not known if the homeless man on the bench would survive his injuries.

AS was charged with Aggravated DUI in NH (the Aggravatiung circumstance being a high Breath Test reading). In Massachusetts AS was charged with OUI/Negligent Operation Causing Serious Bodily Injury, Two counts of Leaving the Scene Property Damage, Leaving the Scene Personal Injury, two Counts of Aggravated Reckless Assault & Battery by Dangerous Weapon, and a number of civil motor vehicle infractions.

AS retained Attorney Robert Lewin. Attorney Lewin brought in Associate Counsel to handle the NH piece of the case.

April 25, 2013

HABITUAL TRAFFIC OFFENDER AVOIDED – LICENSED SAVED

by Robert D. Lewin

GC, a twenty year old man from Andover, has accumulated 11 surchargeable over the last four years. Under Massachusetts Law if a person accumulates 12 surchargeable events over a five year period they are classified as an habitual traffic offender and they lose their license for four years with the right to apply for a hardship license after 1 year.

GC let his license expire (he “forgot” to renew it on the renewal date). After a snowstorm on January 29, 2013 GC removed the snow from the front windshield but only in front of the driver’s seat. The rest of the front windshield and the other windows and the roof remained encased in snow. A police officer pulled GC over and gave him a ticked for unlicensed operation (a criminal offense) and impeded operation (a civil violation). Both violations are surchargeable and if GC were found guilty/responsible of either violation he would lose his license for 4 years.

GC retained Attorney Robert Lewin. Attorney Lewin ran GC’s driver record from the RMV and his criminal record (from the Mass.Department of Criminal Justice Information Services). The driver record showed that in fact GC’s license was not suspended or revoked but had expired; however, the driver record also showed that GC was in non renewal status because he owed excise tax. GC received a summons to appear in Lawrence District Court for an arraignment on April 25, 2013. Attorney Lewin met with the Assistant DA before court and explained the situation. The DA said she would agree to dismiss the unlicensed operation charge on the payment of $300 court costs (the criminal offense) but the DA wanted a responsible finding on the civil violation. The problem with a responsible finding on the civil violation is that it would have given GC 12 surchargeable offenses and he would lose his license for 4 years.

February 29, 2012

Uninsured Motorist Gets Break

by Robert D. Lewin

MM, age 50, of Wakefield, failed to pay his auto insurance premiums and his insurance company sent him a notice of insurance policy cancellation. The insurance company in turn notified the Registry of Motor Vehicles and the Registry sent MM a notice that the registration to his motor vehicle was being revoked due to lack of insurance. MM ignored the notices and he ignored the fact that his vehicle was uninsured. MM had four prior convictions for operating an uninsured motor vehicle. One Saturday morning he was driving and got hit by another vehicle. The police were called to the scene of the accident and quickly discovered that MM’s vehicle was neither registered or insured. In his last case MM had received a substantial suspended sentence with probation and a fine and a loss of his driver’s license. MM was concerned that he would get a committed jail sentence for this his 5th offense. For this new case MM retained Attorney Robert Lewin. Attorney Lewin spoke with the Assistant District Attorney. On Tuesday, February 28, 2012, Attorney Lewin and MM appeared in Malden District Court for a pre-trial hearing. Ultimately Attorney Lewin was able to negotiate a six month continuance without a finding with $500 in court costs. As a result of this disposition MM will not lose his driver’s license and in six months time the charge against him will be dismissed. MM was thrilled with the result.

October 5, 2011

SPEEDING TICKET BEATEN-LICENSE SAVED

by Robert D. Lewin

RJ, a 54 year old man who drives for a living, was at risk of losing his license for three speeding tickets. He had gone to Haverhill (MA) District Court on his own and lost his appeal of a speeding ticket and he had paid a speeding ticket in California which was then reported to Massachusetts. He then got stopped on the Lowell Connector and was charged with going 71 mph in a 55 mph zone. The police were using a Lidar Device. If found responsible he would have lost his license. On October 5, 2011 RJ and Attorney Robert Lewin appeared in Lowell District Court for the hearing in front of the Clerk-Magistrate. RJ thought his case was hopeless. After a full hearing before the Clerk-Magistrate RJ was found NOT responsible. RJ and Attorney Lewin focused on RJ’s version of what had occurred and his testimony that he was going 53 mph. The Clerk-Magistrate found RJ’s version credible, the Lidar reading notwithstanding.

September 21, 2011

HABITUAL TRAFFIC OFFENDER DODGES LOSS OF LICENSE

by Robert D. Lewin

SN, a 23 year old Russian immigrant has a very heavy driving foot. Over the past three and a half years he has accumulated 11 “surchargeable events” on his driving record. Under Massachusetts Law any operator who accumulates 12 “surchargeable events” in a five year period becomes classified as a Habitual Traffic Offender (HTO) and loses his license for 4 years. After one year there is eligibility to apply for a hardship license. SN was driving home on Route 93 North in Methuen. According to the police officer who pulled him over, SN was going 91 mph in a posted 65 mph zone and the zone was a construction zone (the fines get doubled). The officer cited SN for speeding in a construction zone and for failure to keep right. The officer had followed SN for some distance and the speed was estimated, clocked, and lidar checked. These two infractions would put SN into the 12 surchargeable event range and he would lose his license for 4 years. SN drove for a living, which is part of the reason he accumulated so many tickets. SN retained Attorney Robert Lewin. On September 20, 2011 SN and Attorney Lewin appeared at Lawrence District Court for the hearing before the Clerk-Magistrate. At the beginning of the hearing the police prosecutor (a Massachusetts State Trooper) quite inappropriately referred to SN’s driver record and stated to the Clerk that SN had a terrible record and that SN had just not learned. The prosecutor then stated that he did not have a copy of the citation. Attorney Lewin immediately asked that SN be found not responsible and the Clerk-Magistrate agreed and entered a finding of not responsible on the two violations on the ticket. At a hearing on a civil motor vehicle infraction citation the police must have a copy of the citation or report in order to go forward. In the absence of a citation or report the motorist is entitled to a finding of not responsible. The whole hearing played out in less than a minute and SN had no clue what happened until he and Attorney Lewin got outside the hearing room and left the Court and Attorney Lewin explained his good fortune.