Massachusetts Criminal Lawyer Blog

July 8, 2014

OUI 2nd. NOT GUILTY. LICENSE RESTORED

On March 16, 2014 FA (a 28 year old male auto mechanic from Malden) was arrested in Wakefield at about 5:30 AM and charged with OUI Liquor, 2nd Offense. FA had been at a friend’s house playing video games and had consumed several beers during the course of the night. He and his host and another friend fell asleep at around 2:00 AM. FA awoke at about 5:00 AM and with one friend decided to drive to his own home. FA and the friend got into FA’s car. FA pulled down the street took a right turn and suddenly went across the road into a utility pole. FA, who had not been wearing his seat belt, hit his head against the windshield and had a head injury. The police, fire, and EMTs all responded to the accident scene. FA declined medical treatment. The police smelled liquor on FA’s breath, claimed he was unsteady and was slurring his speech. Field sobriety tests were administered which FA could not do. He was arrested for OUI Liquor. A record search by the police revealed a prior OUI conviction from 2005. FA was brought to the Wakefield Police Station and declined to take a breath test. As a result of refusing the breath test his license was revoked for three years. FA went to Malden Court the next morning and was arraigned and his case was continued for pre-trial. FA sought out Attorney Robert Lewin.

Attorney Lewin took a detailed statement of the facts and then spoke with FA’s two friends. It became clear to Attorney Lewin that FA’s case was a very triable case. The crash of the car into the utility pole could be explained by a broken tie rod. His unsteadiness and slurred speech were the results of the head injuries he sustained in the accident. The poor performance on the field sobriety tests was directly related to (1) his injuries in the accident and (2) the fact that it was very cold outside and he was dressed only in dress pants and a dress shirt. No sweater or jacket. Attorney Lewin also turned the focus back onto the Wakefield Police. That police station is loaded with video cameras and video monitors; yet the officers testified that they were unaware if the video system had the ability to record. That was testimony the jury must have found hard to believe. After an all day trial on June 24, 2014 the case went to the jury at 4:00 PM; at 4:35 PM the jury came in with a NOT Guilty verdict.

The OUI Law permits (but does not require) the trial judge to order the Registry of Motor Vehicles to reinstate an accused’s license following a NOT Guilty verdict. On July 8, 2014 FA and Attorney Lewin appeared before the trial Judge and after a hearing the Judge granted Attorney Lewin’s Motion to restore FA’s License. FA left the court house, gave Attorney Lewin a big “thank you” and headed for the Registry to get his license.

May 13, 2014

Operating After Suspension After OUI Charge DISMISSED

by Robert D. Lewin

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.

April 23, 2014

OPEN & GROSS LEWDNESS CHARGE AVOIDED

by Robert D. Lewin

On February 24, 2014 JV, a 66 year old retired carpenter, woke up at about 7:30 in the morning. He sleeps in just a t-shirt. He got out of bed and walked over to a living room window and stood by the window looking outside. His private parts were exposed. According to a Winthrop Police Report an 11 year old boy living one house over looked over at JV and saw JV masturbating. The 11 year old boy got his Mother and she also looked over at JV’s house and she also observed JV masturbating. The mother called the police who responded. After an investigation the police applied for a criminal complaint against JV for Open and Gross Lewdness, a felony in Massachusetts. JV retained Attorney Robert Lewin from North Andover.

Attorney Lewin obtained copies of the police reports and then contacted the Police Prosecutor. Attorney Lewin had several discussions with the Police and ultimately the Police agreed not to push for the issuance of a criminal complaint. On April 23, 2014 JV and Attorney Lewin appeared in East Boston District Court for the hearing on the application for a criminal complaint that had been filed by the Police. Attorney Lewin explained to the Clerk-Magistrate that the case had been discussed at length with the police and that Attorney Lewin was requesting that no complaint be issued, but rather that the matter be left open for 1 year with the application to be dismissed at the end of the 1 year if JV is in no further trouble with the law. As a result of this disposition JV was not arrested, he was not charged with a crime, no criminal complaint was issued against him, he did not have to appear in open court before a judge, no entry of the case was made on JV’s CORI (criminal record), and there was no public notice of the charge that had been applied for against him. JV (and his wife) walked out of East Boston District Court very relieved and very happy that their court ordeal ended well.

April 10, 2014

ANOTHER ASSAULT & BATTERY CHARGE AVOIDED

by Robert D. Lewin

On Friday, December 13, 2013, DL, a 44 year old truck driver from Dracut was delivering a load of crushed stone to a construction site in Andover. DL and the foreman at the construction site got into a heated argument about where the crushed stone was to be dropped. DL (well over six feet tall and well over 250 pounds) got down out of his truck and went chest to chest with the foreman. According to the police reports, the foreman began to turn away from DL and DL then punched the foreman in the face. According to the foreman DL then jumped on top of the foreman and beat him about the face. When questioned by the police DL told the police that the foreman had bumped DL in the chest and then cocked his arm back as if he was going to hit DL when DL in self-defense punched the foreman in the face. The Andover Police filed an application for a criminal complaint against DL for assault and battery. DL retained Attorney Robert Lewin.

Attorney Lewin told DL that he should apply for a criminal complaint against the foreman for assault and battery (the chest bump). Attorney Lewin told DL that this would level the playing field and might convince the foreman to drop the case. On April 10, 2014 DL and Attorney Lewin and the foreman and his lawyer and the Andover Prosecutor were all present in Lawrence District Court for the hearing on the cross complaints for assault and battery. The foreman had taken a pretty good beating and had photos of his face and a hospital report. Attorney Lewin took the foreman’s lawyer aside before the hearing and said that neither the foreman (who has a criminal record) nor DL should want criminal complaints to issue. Attorney Lewin suggested that if each of the two men refused to testify and agreed for no complaints to issue that it was very likely the clerk-magistrate would go along. The foreman’s lawyer said the foreman was adamant about going forward with the hearing. The hearing proceeded: the foreman came off as a wise guy; DL came off as sincere. The Clerk asked to hear first from Attorney Lewin. Attorney Lewin acknowledged that there was probable cause to issue the two complaints (one against each man) but it was in the best interest of both men to walk away from this fight with no criminal complaints. The foreman’s lawyer began to speak and the Clerk interrupted and told him that there was probable cause to issue complaints against both men. The Clerk asked if that was what the foreman really wanted. At that point the foreman and his lawyer talked and agreed that everything would be dismissed. Both applications for criminal complaints were then dismissed. Had DL not filed for a complaint against the foreman the complaint against DL would have been issued. As a result of the Clerk not issuing any complaints, DL does not have to return to court, he does not have to appear before a Judge, and he has no criminal record.

April 9, 2014

9 YEAR OLD WARRANT CANCELLED

by Robert D. Lewin

Back in 2005 PT, then age 31, kited checks at a local bank in Holyoke, MA and ended up owing the bank $1,100.00. Check kiting is illegal and when he refused to pay the bank the $1,100.00 a criminal complaint for Larceny by Check Over $250 was taken out against PT. PT defaulted in Court and took off for Texas. In 2014 PT went to renew his Texas License and was told he could not renew it because he had an outstanding warrant in Massachusetts. PT remembered virtually nothing about the case. PT contacted Attorney Robert Lewin. Attorney Lewin – that same day – contacted the Court and the Holyoke Police and was able to determine the facts of the case, the amount of money owing, that the investigating officer had retired from the police force and the investigator for the bank had also retired. PT retained Attorney Lewin. Attorney Lewin spoke the next day with the Assistant District Attorney at the court; the DA’s Office agreed that if PT paid the $1,100.00 forthwith then the DA’s Office would agree to dismiss the case – and PT would not have to come up to Massachusetts. Attorney Lewin called PT and gave him his options: (1) He could come up to Massachusetts and fight the case and probably win it of (2) he could pay the $1,100.00, not have to come to Massachusetts, and probably get the case dismissed. PT’s wife wired the $1,100.00 to Attorney Lewin the next day. On Tuesday, April 8, 2014 Attorney Lewin appeared in Holyoke District Court and presented a Motion to waive PT’s personal appearance in Court. The judge granted the Motion, Attorney Lewin paid the $1,100.00 to the Court, the default was removed, the warrant cancelled, and the case dismissed. The suspension of PT’s right to operate a motor vehicle imposed by the Massachusetts RMV because of the warrant in Holyoke District Court has been lifted and PT can now go to the Texas DMV and get his Texas license renewed. From the date PT hired Attorney Lewin to the date the warrant got cancelled and the case was dismissed consumed 7 business days. Like many people who have outstanding warrants PT was afraid to deal with it and thought it would never rear its head. Neither PT nor his wife could believe that the case got so favorably resolved, so quickly, without PT having to come to Massachusetts.

April 9, 2014

ANOTHER DUI NOT GUILTY

by Robert D. Lewin

At about 2:00 AM on February 4, 2014 the Andover police noticed a car parked on a street near downtown Andover. The car was running and the lights were on. MG, a 41 year old man from North Andover was alone in the car, in the front seat, slumped over the steering wheel. He appeared to be either asleep or passed out. The police banged on the car and rocked the car in an attempt to get his attention – no luck. The police then smashed the rear driver’s side window and gained access to the car and unlocked the door. MG was alive and breathing but efforts to wake him were progressing slowly. According to the police report a strong odor of alcohol was coming from him and the car. In addition the police found a beer carton in the back seat with a number of empty beer bottles in the carton. Finally the police were able to awaken MG. According to the police report MG was disoriented, was slurring his speech, and had bloodshot and glassy eyes. The police ordered him out of the car. The police report indicates he was swaying when he stood. The police asked MG to perform field sobriety tests and he refused. The police arrested MG for operating under the influence of alcohol and he was brought to the police station where he was booked and he refused to take a breath test. For refusing the breath test MG lost his license for 180 days (mandatory loss of license for a breath test refusal if you have no prior DUI offenses). MG hired Attorney Robert Lewin.
Attorney Lewin met at length with MG to go over the facts and prepare the case. Attorney Lewin also made a demand of the Andover Police Department (through the DA’s Office) for a copy of any video recordings made in the police station book area of MG. The “official response” from the DA’s Office was that there was no video. On April 7, 2014 MG’s case went to a jury trial in Lawrence District Court. The arresting officer testified pretty much as set forth in his police report. The booking officer took the stand and this is where the state’s case began to crumble. The booking officer, in response to a series of questions asked by Attorney Lewin, described the video system in the Andover Police Station, and in particular in the booking area. He described how there is a video camera that points directly at an arrested subject. He also testified that to his knowledge there is a recording made. He testified that to his knowledge no effort had been made to locate the video of MG. Attorney Lewin asked to approach the Judge with the DA and Attorney Lewin moved for a mistrial on the grounds that he had asked for the video, was told there was no video, and now it appeared that there may very well be a video. The Judge denied the request for a mistrial and permitted the trial to continue. MG testified that he had got up on the morning of February 4 at 5:00 AM; that he drove from North Andover to Andover to the commuter rail station; that he parked his car on the street; that he took the train to work and worked until ~ 5:30 PM; that he then walked from his office in Boston to a sports pub in Boston where he met a good friend for dinner; that he had dinner with the friend and had two beers during dinner plus water and a diet coke; that at 8:15 PM they both then left; that he returned to work and worked until ~11:00PM; that he then walked from work to North Station; took the commuter train back to Andover and walked to his car. He testified that it was very cold and his windows were frozen over. He got in his car, started the car up, put the front defroster on and the rear defogger on, and then fell asleep. The next thing he remembered was being woken up by the police. He testified that he had fallen into a deep sleep and it took him a minute to wake up; he also testified that he was sober. His friend with whom he had dinner also testified.
The trial had started at about 10:00 AM and the case went to the jury at 2:55 PM; twenty minutes later at 3:15 PM the jury came in with a verdict of not guilty. Attorney Lewin then filed a Motion for Return of MG’s License which the court granted. MG was arrested on February 5, 2014 and found not guilty by a jury on April 7, 2014 and has his license back. As MG and Attorney Lewin left the Lawrence District Court MG gave Attorney Lewin a firm handshake and a big thank you.

April 2, 2014

19 YEAR OLD WARRANTS IN TWO COURTS CLEARED: 10 CHARGES DISMISSED

by Robert D. Lewin

CN, a 40 year old female refugee from Cambodia living in Lowell, has lived in the shadows for the last 18 years because she had warrants outstanding in Lawrence District Court and Roxbury Municipal Court. In March of 1995 she was arrested in Boston and charged with Receiving Stolen Property and Possession of Cocaine. In July of 1986 she was arrested again, this time in Lawrence, and charged with 4 counts of B & E into A Motor Vehicle, 1 Count of Possession of Burglar’s Tools, and 3 counts of Larceny. Terrified that she would be sent to jail she defaulted in both Courts and “lived in the shadows” for 18 years. On February 27, 2014 CN had an office consult with Attorney Robert Lewin and retained him. Attorney Lewin essentially told her she did not have much to worry about given the ages of the cases. The next day Attorney Lewin brought CN into Lawrence District Court: the Defaults were removed, the warrants recalled, and the cases were continued to March 27, 2014 for pre-trial hearing. Attorney Lewin was successful in getting the Judge in Lawrence not to order CN held for Roxbury Court, but rather released her to go to Roxbury with Attorney Lewin that same day at 2:00 PM. Attorney Lewin and CN then went to Roxbury where the Judge removed the defaults, recalled the warrants, and continued the case to April 1, 2014 for pre-trial hearing. Attorney Lewin then met with the DAs in both Lawrence District Court and Roxbury Municipal Court. The principal witness in the case in Lawrence would have been 107 years old but had passed away many years earlier and most of the police involved in the Lawrence Court case were retired. With the case in Roxbury neither the police report nor the drugs could be found. On March 27, 2014 CN and Attorney Lewin appeared in Lawrence District Court: all 8 charges were DISMISSED. On April 1, 2014 CN and Attorney Lewin appeared in Roxbury Municipal Court: the 2 charges there were DISMISSED. CN was so excited and thrilled that these cases – which had hung over her head for years and had been a shadow on her life – were gone. The Judges in both Lawrence and Roxbury allowed CN to be released because they knew and trusted Attorney Lewin to show up in Court with CN on the next court dates. That kind of trust has been built up by Attorney Lewin over the 43 years he has been a lawyer and appearing in Court.

March 31, 2014

RAPE CHARGE STOPPED

by Robert D. Lewin

On October 25, 2014 CM, an 18 year old boy from a town north of Boston, met JR, a 17 year old girl from another town north of Boston at a pre-Halloween party. The next day JR invited CM over to JR’s house. One thing lead to another very quickly and JR asked CM if he had a condom; when he said no, she produced a condom and the two of them had sex. For several days after that they texted one another but then JR got a boyfriend and CM became history. In late January 2014 JR’s boyfriend became history and JR and CM began texting one another again. They decided to hook up again. This time (on February 1, 2014) CM picked JR up and drove her to CM’s house where they went in and had sex again. This time CM was prepared and had a condom. After the sex, CM drove JR back to her house; they kissed one another and she exited his vehicle. The next day, February 2, 2014, the police show up at CM’s house and serve him with an Harassment Prevention Order from JR.On February 7, 2014 CM got a call from a Police Detective asking CM to come into the station. CM (without a lawyer) went to the Police Station where the police told him that he was being accused of rape and sexual assault of JR at CM’s house on February 1, 2014. CM freely admits having had sex with JR at his house on February 1, 2014 but is adamant that the sex was consensual. During the interview at the police station CM is never asked about and never mentions never mentions the October incident to the police.

CM and his parents contact Attorney Robert Lewin, in North Andover. Attorney Lewin tells them to come in immediately (that night) which they did. Attorney Lewin gets a complete statement of the facts from CM. CM’s family has a security video system installed on the exterior of their house and the video system captures on video all persons arriving at and leaving the house. CM’s parents bring the video recording from February 1, 2014 and it clearly shows CM and JR entering the house and then later leaving the house. JR appears perfectly normal. CM’s parents retain Attorney Lewin.

Attorney Lewin – that very same night – contacts the Police Department and faxes over a letter to the police that they are not to contact CM any further. In addition, Attorney Lewin faxed a letter over to the Middlesex County D.A.’s Office. More importantly Attorney Lewin layed out for the police and the DA CM’s innocence. The next day Attorney Lewin spoke directly with the lead detective in the case. It became immediate obvious to Attorney Lewin what happened in this case. JR never told her Mother and Grandmother (with whom she lived) that she had gone out with CM and that she was sexually active. JR’s Mother and Grandmother did not know about the sex in their own house back in October. The police did not know about the consensual sex in October. It was obvious that JR had never mentioned the sex in October to anyone. It became apparent to Attorney Lewin that when JR showed up at home after the February 1 hookup with CM that she had to have a story for her Mother and Grandmother; thus the rape accusation. The police were confounded when Attorney Lewin informed them of the sex back in October in JR’s own house. Here she was claiming to be raped in February and never mentioning to the police that CM had been at HER house and that she had provided him with a condom and that he and she had had consensual sex back in October. The DA’s Office requested a copy of the video which Attorney Lewin was only too happy to provide.

March 26, 2014

GETTING A DRIVERS LICENSE BACK FROM THE RMV

by Robert D. Lewin

On September 20, 2011 GA, a 50 year old software engineer from Acton was on a business trip to California and got arrested for DUI in California. On January 25, 2012 he pleaded nolo contendere to a reduced charge of reckless operation in CA. He had also refused a breath test in CA. CA revoked his right to operate a motor vehicle in CA for one full year. Massachusetts never got wind of the CA case and GA continued to drive and his MA license remained active. GA’s license was up for renewal in March of 2014 and the RMV Computer then picked up the CA information. The RMV then revoked his MA license for 1 year effective March 7, 2014 for the DUI; the MA RMV also suspended his license indefinitely for the CA chemical test refusal effective February 9, 2014. GA, in the meantime, had never actually got his driving privileges reinstated in CA. So now he was suspended in both CA and MA and both states were telling him that he could not be considered for reinstatement until he got cleared in the other state – a real catch 22. GA contacted and retained Attorney Robert Lewin.

Attorney Lewin immediately researched the issue of getting his driving privileges reinstated in CA. Attorney Lewin explained to GA that the MA RMV would not do anything until GA got reinstated in CA. The CA reinstatement process was sorted out; an SR-22 Insurance Form was obtained; and GA was able to get his driving privileges in CA reinstated. On March 19, 2014 GA and Attorney Lewin then went to the RMV in Boston for a hearing in the Driver Control Unit. Attorney Lewin had prepared a lengthy Memorandum of Law for the RMV and had obtained certified copies of all the paperwork from CA. At the conclusion of the hearing the RMV backdated the 1 year MA suspension for the OUI to the date of the CA conviction which meant that that suspension was now expired. The indefinite suspension for the chemical test refusal was released because CA had reinstated GA’s driving privileges. The RMV reinstated his license (a full license) on the payment of the $500 reinstatement fee which GA paid immediately.

GA had been advised to bypass the RMV hearing and go directly to the Board of Appeal. Attorney Lewin said no; we should go to the RMV first as we have a good shot of getting your license back at the RMV. GA was ecstatic and walked out of the RMV with his MA license fully reinstated.

March 26, 2014

DOMESTIC ASSAULT WITH A FRYING PAN DISMISSED IN MALDEN COURT

by Robert D. Lewin

On October 28, 2013 YL, a 27 year old male Chinese national in the US on a work visa, got into a heated argument with a female roommate (named HR) in their apartment in Malden. Both YL and HR were standing at the stove and they both had items cooking on the stove in pans. It was alleged that YL – in the heat of the argument – raised his pan off the hot stove, poured the water that was in the pan on the floor, and then threatened to hit HR with the hot pan. A third roommate got between YL and HR. YL and the third roommate then left the apartment and HR called the Malden Police. The Malden Police spoke with HR and seized the pan as evidence. YL returned to the apartment while the police were there; he was questioned by the police. According to the police report he admitted picking up the pan and pouring the water out but denied raising the pan and denied threatening HR in any way. The police arrested YL and charged him with Assault with a Dangerous Weapon. This charge is a felony and would subject YL to immediate deportation back to China.

YL retained Attorney Robert Lewin. Attorney Lewin spoke with the third roommate and her statement confirmed YL’s version of what had happened. Attorney Lewin learned that HR was going back to China for at least a three month stay and would be gone during the month of January 2014. Attorney Lewin also learned that the third roommate was moving out of the apartment and her address might not be known to the government. Realizing that bench trials (a trial by a judge alone without a jury) in Malden Court can be had quickly, when the case was called in Court on January 7, 2014, Attorney Lewin requested a bench trial for January 21, 2014. On January 21, 2014 YL and Attorney Lewin appeared in Malden Court and answered ready for trial when the case was called. The Commonwealth had the police present in Court, but neither the victim (HR) nor the third witness were present. Without one of the percipient witnesses present the Commonwealth could not go forward and the case was dismissed. A percipient witness is a witness who was present at the time and place of the alleged crime. Sometimes the timing is just right.