Massachusetts Criminal Lawyer BlogBack 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.
ANOTHER DUI NOT GUILTY
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.
19 YEAR OLD WARRANTS IN TWO COURTS CLEARED: 10 CHARGES DISMISSED
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.
RAPE CHARGE STOPPED
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.
GETTING A DRIVERS LICENSE BACK FROM THE RMV
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.
DOMESTIC ASSAULT WITH A FRYING PAN DISMISSED IN MALDEN COURT
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.
VIOLATION OF AN ABUSE PREVENTION ORDER – NOT GUILTY VERDICT
On September 19, 2013 JP, a 64 year old retired electrician from Revere was at the Essex County Probate Court in Salem for a hearing in a divorce case with his wife. There was an outstanding abuse prevention order that was in effect that she had taken out against him. The order prevented JP from having any contact with his wife. JP was in the hallway of the courthouse waiting for his divorce lawyer. JP’s wife and three friends of hers were also in the hallway. At one point JP’s wife walked down the hallway to the lady’s room. When she returned she walked past JP and she claimed that he began to swear at her and make rude comments to her. JP’ wife returned to her friends and JP saw one of the friends take out her cell phone. JP walked out of the hallway and left the building. The courthouse security and the Salem Police responded to the courthouse; a warrant was issued for JP’s arrest for violation of an abuse prevention order. Subsequently JP turned himself in to the Court and was arraigned and released. JP then retained Attorney Robert Lewin. One of the people with JP’s wife had been videotaping JP while they were all sitting in the hallway. Attorney Lewin filed a detailed motion for a copy of the video. Attorney Lewin pressed the DA’s Office for a copy of the video and ultimately the DA’s Office responded that the video “no longer existed”. JP was terrified of going to trial; and insisted that he would not go to trial. Attorney Lewin explained to JP that in this case he should not fear going to trial that they had a great shot at winning the case. Attorney Lewin prepared JP at length for the trial. There were trial rehearsal sessions in the office. Attorney Lewin taught JP how to look at the Jury and how to give answers to questions to the Jury. Attorney Lewin summonsed 4 witnesses (2 police officers and 2 civilians) to establish that JP’s wife had made two prior false allegations of violations of the abuse prevention order. The jury trial took place in Salem District Court on January 13, 2014.Through cross examination Attorney Lewin was able to destroy JP’s wife and her witness with the video camera on the witness stand. JP took the witness stand and was ready and unshakeable. He came across as sincere and honest. The jury went out to deliberate and twenty minutes later they were back with a verdict of not guilty. JP was thrilled.
DUI 4th OFFENSE – DISMISSED
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.
WIFE ASSAULTS HUSBAND WITH KNIFE – CASE DISMISSED
On June 29, 2013 FW, a 41 year old Chinese woman threatened to kill her husband with a kitchen knife and struck him with her hands. He called 911 and the Reading police responded. Once the police arrived at the home it became readily apparent that FW was mentally ill and was experiencing a paranoid break with reality. Rather than arrest her the police submitted a Section 12 Petition (a mental health commitment petition) and brought her to Winchester Hospital, She was then transferred to a mental hospital where she remained in-patient for 44 days. She was diagnosed with paranoid schizophrenia. A regimen of medications was established and her condition improved markedly over the time she was in the hospital. The police filed an application for a criminal complaint for assault with a dangerous weapon (a felony) and for assault and battery to issue against FW in Woburn District Court. FW and her husband retained Attorney Robert Lewin. Attorney Lewin immediately had FW obtain copies of her hospital records. In addition Attorney Lewin obtained reports from FW’s mental health counselor. Attorney Lewin then reached out to the Reading Police and had a substantive discussion with the police about FW’s condition and her case. Attorney Lewin suggested to the police a resolution of the case that did not involve a criminal complaint being issued against FW at the hearing before the clerk-magistrate.The police agreed not to push for the issuance of a criminal complaint at the hearing before the Clerk-Magistrate. On March 18, 2014 Attorney Lewin and FW appeared before the Clerk-Magistrate at Woburn District Court. Attorney Lewin explained to the Clerk-Magistrate that he had spoken with the police ahead of time and the two sides were asking the Clerk not to issue the complaint. The Clerk wanted to see an updated report from FW’s counselor and Attorney Lewin had obtained a report the day before the hearing. Attorney Lewin gave the report to the Clerk who read it and then agree not to issue a criminal complaint against FW. The Clerk stated that if there are no reports of any law violations by FW over the next six months then on September 19, 2014 no one would have to return to court and the Application for Criminal Complaint would be dismissed and no charges would be issued against FW. As a result FW has no criminal record, was not charged, and did not have to appear in front of Judge. In these types of cases good communication between a criminal defense lawyer and the police prosecutor can be the difference between being prosecuted and not being prosecuted. Attorney Lewin’s five years as an Assistant District Attorney and his 39 years practicing criminal defense have given him the experience and know how to deal with all these situations. FW and her husband walked out of Woburn District Court very happy that FW was not charged.
PROBATION VIOLATION FOR INABILITY TO URINATE FOR DRUG TESTING
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.