Massachusetts Criminal Lawyer BlogSD, a computer engineer, and his wife, also a computer engineer, immigrated to the US from India. They are both permanent resident aliens. Tensions developed in the marriage and one night Mrs. D called 911 and the police responded. She told the police that SD had struck her and thrown things at her. The police arrested SD and he was charged with Assault & Battery and Assault & Battery with a Dangerous Weapon. These are both deportable offenses. SD contacted and interviewed a number of lawyers and after much negotiation SD retained Attorney Robert Lewin. Attorney Lewin spoke with Mrs. D and he explained the marital privilege to Mrs. D. Fortunately for SD his wife decided that she would not testify against him. Attorney Lewin prepared a marital affidavit for Mrs. D in which she exercised her marital privilege. Attorney Lewin then contacted the Assistant DA handling the case and gave him a copy of the affidavit. On Wednesday, February 13, 2013 SD and his wife and Attorney Robert Lewin appeared in Malden District Court for a pre-trial hearing. Attorney Lewin put the Assistant DA in contact with Mrs. D and she confirmed that she did not want to testify against her husband. The case was called and Attorney Lewin explained the situation to the Judge. The Judge questioned Mrs. D to make certain that her exercise of her marital privilege was done freely and voluntarily. Attorney Lewin then asked the Judge to dismiss the case; the Assistant DA did not oppose and the Judge ordered the criminal charges dismissed. The threat of deportation is now completely removed. SD and Mrs. D have some work to do if their marriage is going to be salvaged, but the criminal case is gone.
WASHINGTON DC RESIDENT GETS MA WARRANT CANCELLED
DP, a resident of Washington DC, went to get his driver’s license renewed and was told he could not get it renewed because his right to operate in MA was under suspension because of an outstanding court warrant. It seems that in 2010 DP had gotten into a scrape at South Station in Boston and got arrested. He failed to go to court and returned to Washington. A warrant for his arrest was issued by the Boston Municipal Court. The Massachusetts Registry of Motor Vehicles received a notice form the Court and suspended DP’s right to operate a motor vehicle. That suspension was entered into the NDR (National Driver Register) and when DP went to renew his license in Washington he was refused. DP contacted a Boston Attorney at a large firm whom he knew and the Attorney referred DP to Lewin and Lewin. DP retained Attorney Robert Lewin. The day after being hired Attorney Lewin immediately went over to the Boston Municipal Court and obtained copies of all the papers and police reports in DP’s case. Attorney Lewin also went to the District Attorney’s Office and spoke with the DA Supervisor. After some discussion the DA’s Office agreed to dismiss the charges. Several days later DP flew up to Boston from Washington and on Thursday, February 21, 2013 DP and Attorney Lewin appeared in the Boston Municipal Court. The Judge removed the default, cancelled the warrant, assessed $200 in court costs which DP paid immediately, and ordered the two criminal charges dismissed. The cancellation of the warrant was entered into the warrant management system. DP went to the RMV, paid a reinstatement fee, and got the suspension of his right to operate lifted. He then flew back to Washington and got his license renewed. He is a happy camper!
SHOPLIFTING CHARGE AVOIDED
On August 15, 2012 VB, a 28 year old program director at a facility for the handicapped, was caught shoplifting at Kohl’s in Chelmsford. Every year her employer does a CORI check (criminal record check) and if this case showed on her record it would have meant immediate dismissal from her job. VB contacted Attorney Robert Lewin. Attorney Lewin spoke with the Chelmsford Police Prosecutor who said it could be months before the application for criminal complaint was processed and scheduled for a hearing by the Clerk’s Office at Lowell District Court. Attorney Lewin also spoke with the Loss Prevention Officer from Kohl’s. Finally VB received a notice from Lowell District Court to appear for a Clerk-Magistrate’s Hearing. On February 7, 2013 VB and Attorney Lewin appeared for the hearing. Attorney Lewin had secured an agreement from the police prosecutor for a complaint not to issue. The Clerk-Magistrate at the request of both the police and Attorney Lewin continued the hearing for six months to August 9, 2013. If VB is in no further trouble with the police then on that date the Application for a Criminal Complaint will be dismissed by the Clerk-Magistrate and neither VB nor Attorney Lewin will have to appear in Court on that date. As a result of this disposition VB has NO criminal record and her job will not be placed in jeopardy. Because no criminal complaint was issued against her she does not have to appear in front of a judge and no entry is made in the CORI system. It is as if it did not happen.
Weed Dealer Gets Break In Dorchester
CB, a senior at a local state college, was heading back to school when he got pulled over for a broken taillight. The officer got up to the driver’s window and was immediately struck by the strong and distinctive odor of marijuana. One thing led to another and by the time the police were done they had seized a quantity of marijuana from the car along with a scale, packaging materials, and over $3,000.00 in cash. CB made incriminating statements to the police. CB was arrested and charged with Possession of Class D with intent to Distribute. CB, a Dean’s list student, is due to graduate from college in May and saw his future job prospects going up in smoke. CB retained Lewin & Lewin to represent him. The facts did not lend themselves to a good Motion to Suppress and the evidence of guilt was overwhelming. Initially the Assistant District Attorney was looking for a conviction and a 2 year term of supervised probation. Attorney Robert Lewin met with the Assistant District Attorney and advocated on behalf of CB. The Assistant DA agreed to a continuance without a finding and agreed to lower the term of the probation to one year. On February 8, 2013 Attorney Joshua Lewin appeared in Dorchester District Court with CB. A tender of plea was presented to the Judge. Attorney Lewin asked the judge to continue the case without a finding for three months (to CB’s graduation date from college). Ultimately the Judge agreed to continue the case without a finding for six months. The Judge ordered that the probation was to be administrative. Provided CB stays out of trouble, the charge will be dismissed on August 8, 2013. At that time Attorney Lewin will file a Petition to Seal the record. If the Petition is granted the record will be sealed and it will be as if the case did not happen. In addition had there been a conviction (guilty finding) CB would have lost his license for 2 years; because the case was continued without a finding CB suffered no loss of license. Wins come in all shapes and sizes. CB was thrilled with the result: he was not found guilty; he did not lose his license; his case will be dismissed in six months; and he will be well positioned to get his record sealed in six months. He and his family were very concerned that this case would be disastrous for his future job prospects; now, however, In six months the record will be sealed and the case will not show up on his record.
ABUSE PREVENTION ORDER VACATED IN LOWELL DISTRICT COURT
In 2006 RG and KM began a dating relationship. They moved in together and then bought a home together. Eventually the relationship soured and one night in February 2010 they had a huge argument. The next day KM went to Lowell District Court and obtained an abuse prevention order against RG. At the full court hearing two weeks later the order was extended for one year. In February 2011 the order was extended for an additional year. In February 2012 RG decided he wanted to challenge the extension of the order. RG retained Attorney Robert Lewin. On the one year hearing date all the parties appeared in Court. At that time RG and KM were still involved in a civil lawsuit over the proceeds from the sale of the house. The Judge at the hearing expressed concern that the civil lawsuit could provide a flahpoint and a point of contact between the parties. It was anticipated that the civil lawsuit would be finished by June 2012. The Judge extended the abuse prevention order to a date in June 2012. On that date all the parties appeared again in court. The civil lawsuit was still not finished. The Judge again extended the order until December 4, 2012. On December 4, 2012 all the parties again appeared in Court. The civil lawsuit between the parties was completely finished. Attorney Lewin had prepared a lengthy memorandum of the facts and the law in the abuse prevention order case. He pointed out that the relationship had ended in February 2010 – 2 years and 10 months earlier and that there had been no contact between the parties since that time and no violations of the order. When a party seeks to extend an abuse prevention order the burden of proof is on that party to prove that at the time of extension hearing the party still has a reasonable fear of imminent serious physical harm. It is not enough to prove that at the time the order was originally granted the party had a reasonable fear of imminent serious physical harm. The party must prove that there is a continuing need for the order. There is no presumption in the law in favor of extending these orders. Attorney Lewin’s Memorandum of Law cited all the appropriate cases for the Judge. On December 4, 2012 all the parties appeared before the Judge in Lowell District Court. The Judge reviewed the Court papers and read Attorney Lewin’s Memorandum. The Judge turned to KM and asked her if she was seeking to extend the order for another year. To everyone’s surprise KM said “No, your honor.” Even KM had come to the realization that after 2 years and 10 months of absolutely no contact with RG that any fear she had would not be deemed reasonable. The order was vacated. Had RG not persisted in fighting the extensions of the order and had he not been willing to return to court on two additional occasions the order probably would have been made permanent. To win you have to be persistent and you have to be willing to fight for what is right.
OPEN & GROSS DEFENDANT CATCHES BREAK IN LAWRENCE DISTRICT COURT
It was a nice warm September day and JT was driving home in his car. He pulled into a parking lot in a State Forest in North Andover and began to masturbate in the car. A woman in an SUV pulled into the parking space next to JT. She looked over towards his car and he looked over at her. He continued to masturbate. She got out her cell phone and dialed 911. He backed his car up quickly and spead away, but not before she got his license plate. The police investigated. The police spoke to him and although he denied being in the parking lot he did tell the police he was the only person using his car that day. The woman ID’d his photo in a photo array as the man she saw masturbating. The North Andover PD charged JT with Open & Gross Lewdness (a felony). When the North Andover Police ran their data base they discovered that JT had a similar uncharged event from several years prior. This posed a major problem for JT – who is married and has a child. Two Open & Gross convictions requires Sex Offender Registration for 20 years and if he was placed on Probation the law mandates that he wear a GPS Tracking device during the term of his probation. JT retained Attorney Robert Lewin. Attorney Lewin met with the North Andover Police to see if prosecution for the old uncharged event could be avoided. Attorney Lewin also met with the Assistant District Attorney to try to work out a favorable plea bargain in the case. On November 29, 2012, Attorney Lewin and JT appeared in Lawrence District Court. After a full plea hearing the Judge ordered that JT’s case be continued without a finding for one year. JT agreed to have a mental health evaluation and comply with any recommendations for outpatient treatment. In one year if JT stays out of trouble the charge will be dismissed and JT will be eligible to request that the court record be sealed. Because the case was continued without a finding JT was not convicted and he does not have to register as a convicted sex offender and he does not have to wear a GPS Tracking bracelet. JT left the court very relieved
ALLEGED ASSAULT BY A FATHER ON HIS TEENAGE DAUGHTER DISMISSED IN LAWRENCE DISTRICT COURT
On September 29, 2012 LF left his home to find his 17 year old daughter who had run off in the middle of the night with two unknown men. He found her and attempted to get her to get in his car. She resisted. He called the police and got himself arrested for assault and battery on his daughter.He went to Court the next morning to get arraigned. He tried to explain what had happened and that it was he who had called the police. His daughter was present at Court and tried to speak on his behalf but the DA and the Judge would not hear any of it. LF was arraigned; he was told to get a lawyer; and he was told not to abuse his daughter. His case was continued to November 28. LF retained Attorney Robert Lewin. It appeared from the police reports that the daughter had in fact assaulted (kicked) her father. It became clear that the daughter had a Fifth Amendment right to remain silent. Counsel was obtained by the daughter. The daughter’s lawyer recognized that the Daughter could herself be prosecuted for Assault and Battery and that it was in the daughter’s best interest to exercise her Fifth Amendment right to remain silent. Attorney Lewin spoke with the Assistant District Attorney and explained the situation that the daughter would not testify against her father and that the daughter would exercise her valid Fifth Amendment privilege not to incriminate herself.Normally, the District Attorney’s Office refuses to dismiss these cases at the pre-trial and insists that everyone come back for the trial date.On November 28, 2012 LF and Attorney Lewin appeared in Lawrence District Court for a pre-trial hearing. Attorney Lewin explained the situation to the Judge. The Judge called the daughter and her lawyer forward. The Judge inquired of the daughter regarding her Fifth Amendment privilege. The Judge accepted the Daughter’s exercise of her Fifth Amendment privilege. Attorney Lewin moved the Judge to dismiss the case right then and not make everyone come back on a later trial date. The DA relented and the Judge ordered the case dismissed. Getting the case prepared well in advance and making certain that all the necessary persons were present at the pre-trial brought about this very favorable result.
ANOTHER DUI WIN – LOWELL DISTRICT COURT
On June 24, 2012 RM was driving home from a tavern in Lowell. He was on Thorndike Street and in front of him he noticed a State Police Road Block. RM entered the road block. The “greeter officer” noticed an odor of alcohol and asked RM if he had been drinking. RM responded yes and the “greeter officer” directed RM into the large parking lot the State Police were using to conduct the investigations. RM pulled in and was directed to a spot. He was asked to produce his license and registration. According to the Trooper RM just sat in the seat and did not respond. The Trooper asked again and this time RM got his license and registration and gave them to the officer. The Trooper asked RM to exit the vehicle which RM did. Two field sobriety tests were administered. The one legged stand and the 9 step heel to toe walk. (The HGN Test – horizontal gaze nystagmus test – was also administered but was not allowed into evidence at the trial. A portable breath test was administered in the field but this also was not allowed into evidence at the trial.) According to the police report RM failed the field sobriety tests and RM was arrested and charged with operating under the influence of liquor. RM was brought to the Concord Barracks where he elected to take a breathalyzer test. He blew a .07 which is in the gray area. RM retained Attorney Robert Lewin. At the pre-trial hearing Attorney Lewin got the DA’s Office to stipulate to the .07 and to stipulate that it would be admissible without the necessity of bringing in the breath test operator. On October 25, 2012 the case went to trial. On the advice of Attorney Lewin a jury was waived and the case was tried to the judge without a jury. The greeter officer and the arresting officer testified. RM and his wife testified. His wife testified that she was at home in bed when the phone rang at 2:45 AM. It was RM calling from the State Police Barracks. She testified that he was coherent and his speech was perfectly normal. She testified that she detected no signs of intoxication either in what he said or the way he said it. She also testified that he gave her specific driving directions on how to get from their home in Lowell to the State Police Barracks in Concord – a mighty task for someone who is allegedly under the influence. She was on the witness stand for about three minutes but her testimony was very helpful. RM testified. RM did a great job. His testimony was clear and concise; he was polite yet confident. The DA could not shake him on cross-examination (for which Attorney Lewin had thoroughly prepared him). At the close of his testimony both sides rested. Attorney Lewin made his closing and the DA made her closing argument. The Judge then said “I have considered all the testimony, I have taken into account the law and the burden of proof, and I find the Defendant not guilty.” RM is a truck driver and it was important for him to win. Several observations about the case: (1) The facts were good, especially the .07 breath test result; (2) RM and his wife were very well prepared. In meetings with Attorney Lewin both RM and his wife were put through a “mock” trial. They were put through both direct and cross examination. When they got on the witness stand in court they were ready; there were no surprises; and (3) The decision to try the case to the Judge alone without a jury was the right choice. Juries in Middlesex County can be difficult in DUI cases. Some months ago there was a series of stories in the Boston Globe about certain Judges who almost always say not guilty in DUI cases. Since that series in the Globe many Judges have been less ready to say not guilty in these cases. Nevertheless most Judges will still say not guilty if the evidence is not convincing beyond a reasonable doubt. This was one of those cases where Attorney Lewin felt the judge would say not guilty and the client agreed.
Operating After Suspension – Bad Luck turns to Good Luck In Woburn District Court
On April 25, 2012 JC was driving from his home in Lowell to his place of work in Burlington. JC is 57 years old and is employed as a finish carpenter. Between 1980 and 1997 JC had a tremendous problem with alcohol and was convicted no less than 9 TIMES for DWI. He spent most of the 1990s in jail. When he wasn’t in jail he was out drinking and driving. He got out of jail in 1999 and has not had a drink since. His license was revoked for ten years by the Registry. As of the date of his last DWI Melanie’s law was not yet in effect and the maximum loss of license was ten years – no matter how many prior DWI cases a person had. In 2001 JC was convicted of operating after suspension and served some additional time. In 2009 he tried to get a license from the registry but they turned him down; he went to the Board of Appeal and they turned him down; he went to Superior Court and they turned him down; and he then went to the Massachusetts Appeals Court and they turned him down. Getting back to April 25, 2012. JC’s son had an outstanding warrant. JC’s son’ name is also JC. A Burlington police officer was randomly checking license plates as JC drove by and the warrant to the son showed up. The officer pulled JC over and discovered that his license was still suspended. JC was honest with the officer and the officer did not arrest him but rather issued him a citation. JC contacted Lewin & Lewin. Attorney Robert Lewin instructed JC to immediately request a Clerk-Magistrate’s Hearing. JC did request a hearing and a hearing date was scheduled for October 1, 2012 at Woburn District Court. Under the theory that the worst they can say is no, Attorney Lewin approached the Burlington Police Prosecutor and pointed out that JC had been out of trouble for many years and that he was simply driving to work. Attorney Lewin asked if the police would be willing to settle the case in the Clerk’s Office – WITHOUT a complaint issuing against JC. The police agreed. On October 1, 2012 JC, Attorney Robert Lewin, and the Burlington Police appeared before the Clerk-Magistrate at Woburn District Court for the hearing. At the request of Attorney Lewin with the agreement of the Burlington PD the Clerk-Magistrate did not issue a criminal complaint against JC. The Clerk ordered that the papers would be held for six months and if JC stayed out of trouble then the application for the criminal complaint for operating after suspension will be dismissed. What a break! If the complaint had been issued against JC there is no question that he would have been heading back to jail. The lesson in this case is that it pays to ask. Shoot for the moon; the worst the other side can say is no and sometimes – as in this case – they say yes. This is the type of common sense lawyering that comes from the 41 years of experience that Attorney Robert Lewin brings to the table.
Eight Drug Charges Dismissed in Woburn District Court
On February 19, 2011 PL was arrested in Reading, MA and charged with Possession Class A, Possession Class B (two counts), and Possession of Class C. He was arraigned in Woburn District Court and his cases were continued. PL retained Attorney Robert Lewin.The night before he was to return to Court PL was arrested again in Reading and charged with Possession Class A, Possession Class B (two counts) and Possession Class C. PL’s family immediately had PL admitted to an in-patient detox facility. Chapter 111E of the Massachusetts General Laws allows a judge to stay (put on hold) the criminal proceedings against a person who is charged with a drug possession offense if that person is a drug addict or a drug dependent person who would benefit from treatment. PL wanted help for his drug dependency. Attorney Lewin filed Motions to Stay the Proceedings in both of PL’s cases. PL spent 30 days in an in-patient program, followed by two months in a “day-program”, followed by 15 months of weekly counseling which included 3-4 AA/NA meetings per week. PL has been drug and alcohol free since the night of his second arrest on April 18, 2012. PL’s cases were stayed for a total of 18 months. On September 26, 2012 PL and Attorney Lewin appeared in Woburn District Court. Attorney Lewin had reports from all of PL’s treatment providers and furnished to the Court. PL is clean of drugs, is working full-time, is supporting his wife and children. Pursuant to Chapter 111E the Judge, at the request of Attorney Lewin, ordered all the charges against PL dismissed. Attorney Lewin was extremely proud of PL and congratulated him for taking charge of his life and “earning” the dismissal of the criminal charges.