Massachusetts Criminal Lawyer BlogOn 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.
20 Year Old Youth Found NOT Guilty of DWI in Newburyport District Court
On June 9, 2012 FE and a friend drove to Hampton Beach, NH and spent the evening at a club. FE was age 20. When they left the club in the early morning hours of June 10, 2012 the friend was too drunk to drive and asked FE to drive the friend’s pick up truck. FE agreed and drove and headed down Rt 495S toward Lowell. FE was tired and pulled into the rest area on the southbound side of Rt. 495 in Merrimac, MA. There was a thirty pack of Coors Light on the rear floor. There was an open 12oz. Keystone Beer in a rear door pocket. There was also a 12 oz. Coors Light can (open) on the rear floor behind the center console. There was a cooler with ice in the back. After pulling into the rest area and parking laterally across three parking spaces, FE put the truck in park and both FE and his friend fell asleep with the engine running. The State Police entered the rest area and observed the truck.After waiting about ten minutes the Trooper approached the pick up to do a “wellness check” on the occupants. He banged on the doors and windows and got no response from the sleeping occupants. The Trooper then opened the drive’s door and FE, who was sleeping, started to fall out of the truck but was caught by the Trooper. FE awoke at that point.The truck wreaked of beer as did both occupants. The Trooper got FE out of the truck and administered Field Sobriety Tests. FE did well on the nine step heel to toe walk, he did poorly on the one legged stand, he did fair on the counting backwards test. He failed the horizontal gauze nystagmus test (HGNT). He was then arrested. He was brought to the Newbury State Police Barracks where a breathalyzer test was administered. The result was a .079! This gets rounded down to a .07 which is in the gray area in Massachusetts. On October 2, 2012 the case went to trial in Newburyport District Court. Attorney Robert Lewin represented FE. Attorney Lewin recommended to FE that the case be tried jury-waived (to a judge alone without a jury). The case was tried to a judge alone. The Judge excluded the results of the HGNT. The trial took about 20 minutes and the Judge returned a finding of NOT guilty. Because he was under 21, FE still loses his license for 180 days because his breath test result was over .02.
FLORIDA MAN GETS MASS. WARRANTS RECALLED AND GETS HIS LICENSE BACK AFTER 28 YEARS ON THE RUN
GS is a successful 49 year old Florida businessman with a past that came back to bite him. In 1984, when he was 21 years old, he was driving drunk and led the police on a chase through several towns. It all ended in a crash and GS was taken from the scene in cuffs. He was brought to Wareham District Court. He was charged with 11 offenses including DWI, Reckless Operation, 2 Counts of Malicious Destruction to Property, Disorderly Conduct, Disturbing the Peace, and so on. Following a trial by Judge he was sentenced to serve 14 months in the House of Correction and his license was revoked. GS appealed. Before his appeal could be heard GS defaulted in court and his appeal was deemed waived and the original 14 month sentences were ordered into effect. A new criminal complaint issued against him for bail jumping. Warrants for his arrest were issued. GS went to Florida and remained in Florida for the next 28 years. He married and raised a family and ultimately started his own business which became very successful. He got a Florida driver’s license and for 28 years he lived the good life. In 2011 he went to renew his Florida driver’s license and the Florida DMV told him they could not renew because the NDR (National Driver Registry) was showing that he was suspended in Massachusetts due to the warrants from 1984. GS told his family about his “problem” in Massachusetts and then contacted the law offices of Lewin and Lewin. Attorney Robert Lewin was retained. Attorney Lewin immediately went to the Wareham District Court to review all the court papers. Sure enough GS had been sentenced to the 14 months in jail and he had defaulted. Under Massachusetts Law a Motion to Revise or Revoke a sentence must be filed within 60 days of the sentence being imposed. That 60 day period had elapsed back in 1984. Attorney Lewin looked for a technical angle and found one. Attorney Lewin prepared a Motion for Reconsideration of certain actions that had been taken by the Court back in 1984. Attorney Lewin met at length with the Assistant District Attorney and filed a Motion to dismiss the case and appeared before the Judge in Wareham. The Judge set the Motion down for hearing but insisted that GS come up from Florida to appear at the hearing. GS came up and on Thursday, May 3, 2012 GS and Attorney Robert Lewin appeared in Wareham District Court. After a full hearing the Judge granted Attorney Lewin’s Motion for Reconsideration. The defaults were removed, the warrants were recalled, all the guilty findings were vacated (after 28 years), all the sentences were vacated, and all the charges were ordered dismissed. The Judge, by agreement, ordered GS to pay $1,000 in court costs which GS paid immediately. The court cases were over. GS and Attorney Lewin waited in the Clerk’s Office to obtain attested copies of all the court papers. Armed with the Court papers, GS and Attorney Lewin then drove from Wareham to Boston to the RMV Driver Control Unit on Washington Street. Two hours later, GS walked out of the RMV with his right to operate reinstated. On Monday, May 7, 2012 GS called Attorney Lewin and told Attorney Lewin that he had just left the Florida DMV with his new license. GS was very very lucky. Many judges would have simply ordered GS to serve the 14 months.
WARRANT FOR DRUG DEALER CLEARED AFTER 23 YEARS
In 1989 SFC, a Dominican national, was arrested and charged with Distribution of a Class C Drug and Conspiracy to Violate the Controlled Substance Act in Malden Court. He appeared in Court several times and then went on the run. A warrant for his arrest was issued and remained open for over two decades. In 2012, SFC having remained in the US was married and had three children and wanted to become a citizen. He had to clear up the warrant and get the case resolved. SFC retained Attorney Robert Lewin of Lewin & Lewin. Attorney Lewin went to Malden Court and contacted the Malden Police. Unfortunately for SFC after 23 years the arresting officer and the back-up officer were still on the police department and the drugs (which SFC had allegedly sold to an undercover officer) were still in the evidence locker! Attorney Lewin was able to marshal a great deal of evidence that SFC had lead a crime free life since and that he had become a productive citizen. After several weeks of negotiation the District Attorney’s Office agreed to dismiss the charges against SFC upon the payment of $1,000 in Court costs. On April 23, 2012, SFC and Attorney Robert Lewin appeared in Malden District Court. Judge Johnson, a tough Judge who does not like these cases of people who are on the run for years, went along with the agreement that had been worked out between Attorney Lewin and the DA’s Office and ordered the case dismissed. With the dismissal of these criminal charges SFC is now in a position to proceed with an application for citizenship.
OBTAINING A LEVEL 1 SEX OFFENDER CLASSIFICATION
On February 15, 2012 JB plead guilty in Middlesex Superior Court to possessing and distributing child pornography and was placed on Probation for four years. (See the blog entry describing JB’s case in our blog dated March 5, 2012.) JB then filed the required notice with the sex offender registry board (SORB). The Board then sent JB a notice that he was going to be classified and gave him an opportunity to submit materials relative to the classification. JB again retained Lewin & Lewin to represent him at the SORB. Attorney Robert Lewin prepared the response to the Board. A lengthy pre-hearing memorandum was prepared by Attorney Lewin and many favorable documents were attached to the memorandum and the entire package was submitted to the SORB on March 26, 2012. On April 19, 2012 (just 24 days after submission by the defense) the Board sent out a Notice that it was classifying JB as a Level 1 sex offender. As a Level 1 sex offender JB can register yearly by mail and information about him is NOT available to the public. Attorney Robert Lewin has presented many cases to the Massachusetts Sex Offender Registry Board and has achieved outstanding results for clients at the Board.
OUI LIQUOR CHARGE THROWN OUT AT CLERK’S HEARING
On December 24, 2011 in the early evening the Woburn Police responded to a one car crash in Woburn. A car had crashed into a guard rail and into two large stone pillars coming to rest against the second stone pillar. When the police arrived the owner of the vehicle, KB, was seated on the steps of a home facing the accident scene. She appeared to the police to be highly intoxicated. According to a Fire Department report the Fire Department had been called to KB’s house about one hour earlier and had found her in a highly drunken state and had put her to bed. KB was taken from the accident scene to Lahey Clinic where she was admitted and treated and released the next day. She was issued a citation for OUI-Liquor. KB retained Attorney Robert Lewin. Attorney Lewin immediately requested a clerk-magistrate hearing and obtained the hospital reports and the blood test reports. Remarkably the blood test results showed the presence of NO alcohol. It appears that KB had had a reaction to medication that she was taking; the medication (Ambien CR) can cause sleep walking, sleep driving, and other activities performed while in a sleep state. An expert witness (an MD) was consulted and a letter was obtained from the Doctor explaining that sleep driving is a recognized consequence of this medication. On March 21, 2012 a hearing was held at Woburn District Court and the Clerk found no probable cause and refused to issue a complaint against KB. KB left the Court a happy woman!
WIFE ACCUSED OF DOMESTIC ASSAULT & BATTERY: CASE DISMISSED
GG, a 31 year old administrative assistant at a major health care organization, went out with her husband one night and had a bit too much to drink. Upon arriving back home GG accused her husband of having a liason with another woman which her husband denied. GG got angry with her husband and according to the police reports began to slap him in the face repeatedly. Husband called 911, the police responded, and GG got herself arrested and charged with assault and battery. She went to Waltham Court the next morning and got arraigned. GG retained Attorney Robert Lewin. Attorney Lewin prepared a marital affidavit for the husband to sign (he was agreeable to the case being dismissed). Attorney Lewin then met with the Assistant District Attorney and presented the marital affidavit to the Assistant D.A. Attorney Lewin then put the husband in direct contact with the Assistant DA assigned to the case and the husband made it clear that he wanted the case dismissed. On March 12, 2012 GG and her husband and Attorney Lewin appeared in Waltham District Court. At the first call of the case at 9:30 AM the Assistant District Attorney filed a nolle prosequi. A nolle prosequi is a termination of the prosecution of a criminal case by the Commonwealth. It is the Commonwealth’s way of dismissing a case. Attorney Lewin is now preparing a petition to seal the record of the case; when the petition is granted the case will be removed from GG’s criminal record and she once again will have no criminal record. By preparing the case early and by connecting with the District Attorney’s Office early we were able to get the case dropped immediately.