On June 24, 2018 at about 1:20 AM a Gloucester Police Officer was on routine patrol in Gloucester when he noticed a van stopped on the side of the road. The van was stopped in a no stopping/no parking area. The officer stopped and went over to the van. There was a man who appeared to be passed out in the driver’s seat. The van was running; the lights were on. The officer attempted to wake the mam by knocking on the window. After about two minutes of knocking and yelling at the man the man woke up. The officer opened the door to the van and there was a heavy odor of an alcoholic beverage. The officer asked the man if he knew where he was and the man responded “Malden”. The officer engaged in conversation with the man and noticed that the man’s speech was slurred, his eyes were glassy and bloodshot, and there was an odor of alcoholic beverage coming from the man’s breath. The officer had the man get out of the van and proceeded to perform field sobriety tests. There was a 9 step heel to toe walk, a one legged stand, and an alphabet test all of which – according to the officer – the man failed. The man was arrested and brought to the police station where he took a breath test and blew a .19 (over twice the legal limit of .08). The police then did a criminal record check and discovered that the man had a prior DWI. In fact the man had just one week earlier completed his probation on the first offense. The police charged the man with a DWI 2nd Offense.

The man, whom we shall refer to as DE, was released from the police station and went to court in Gloucester the following morning for an arraignment. His case was continued to July 30, for a pre-trial hearing. DE then consulted with Attorney Robert Lewin from North Andover. The initial consultation – which was free and with no obligation – lasted almost two hours. Attorney Lewin was encouraged that the case could be won at trial. DE retained Attorney Lewin. Attorney Lewin filed the necessary discovery motions and learned that the police had no video recordings of DE either on the street (no body cams or dash cams) or in the station (no booking videos). In addition Attorney Lewin explained to DE that if DE’s case could be tried quickly the breath test results would not be used. (There is a statewide challenge to the breath test machine and at present the District Attorney in Essex County is not using the results at trial.). On July 30, 2018 DE and Attorney Lewin appeared in Gloucester District Court and the case was set down for trial by jury on November 27, 2018 in Peabody District Court. (Jury Trials from cases in Gloucester District Court are held in Peabody District Court.)

Between July 30 and November 27, 2018 DE and Attorney Lewin met in Attorney Lewin’s Office on several occasions for trial preparation. Attorney Lewin thoroughly prepared DE to testify at trial. Attorney Lewin played the role of the Assistant District Attorney and cross examined DE. DE was ready to testify when the trial date arrived. On November 27, 2018 the case was called for trial but had to held one day to accommodate a case that was already being tried. On November 28, 2018 the trial began and Attorney Lewin went on the attack against the Commonwealth’s case. The facts are not always what they seem. DE was not “passed out” but merely asleep from having worked that day. The van was in park and was left running because it was a hot summer night and DE wanted the air-conditioning on. The van was not stopped in the middle of the road but was parked at the curb and the gearshift was in park. DE testified at the trial that he performed well on the field sobriety tests. Attorney Lewin was able to present to the jury that there is a sign prominently displayed in the booking area of the Gloucester Police Station that reads (in big red letters) ‘YOU ARE BEING VIDEO AND AUDIO RECORDED”. Attorney Lewin confronted the Gloucester Police Officer with a picture of the sign and asked the officer “Where is the recording?”  The officer said there is no recording. Attorney Lewin hammered on this point and an observer could see that the Jury did not believe the police testimony that there was no recording. The trial went over to a second day. On November 29, 2018 the Jury went out to deliberate and after one hour and fifteen minutes the jury returned with a NOT Guilty verdict.

On February 15, 2018, LT, a 55 year old woman from North Andover went to her daughter’s home (also in North Andover) and got into an argument with her 22 year old daughter. The daughter was holding her 1 year old baby and, according to the North Andover Police report, LT “punched [the daughter] on the right side of her face with a closed fist while she was still holding the baby”. The police left the daughter’s home and went to LT’s home and then spoke with LT. LT denied punching her daughter but did admit to pushing her daughter. LT claimed that her daughter had pushed her and had caused a bruise on LT’s face. The police arrested LT.

The next day, February 16, 2018 LT was arraigned in Lawrence District Court. She was ordered released on personal recognizance and her case was continued to April 26, 2018 for a pre-trial hearing. LT met with and retained Attorney Robert Lewin from North Andover. Attorney Lewin explained to LT that the District Attorney’s Office would not simply dismiss the case because LT was a nice lady with no record. Attorney Lewin met with the Assistant District Attorney and explored the possibility of a general continuance of the case. A general continuance is where the parties agree to simply continue the case for a period of time and at the end of the period of time if there have been no further problems the case gets dismissed. With a general continuance there is no admission of guilt or wrongdoing; it is NOT a plea bargain as there is no guilty plea.

On April 26, 2o18 the case was called in Court for a pre-trial hearing. The DA’s Office was unwilling to commit to a general continuance. The case was then continued for a trial by jury to May 30, 2018.

On Saturday, October 6, 2018, ST, a 54 year old father of two children was at his home in Chelmsford. ST and his 17 year old son got into an argument and the son claimed that his father had grabbed the son by the throat. ST’s daughter called 911 and the police came to the house and arrested ST. ST’s wife was present as well. On Sunday, ST contacted Attorney Robert Lewin from North Andover. After speaking with Attorney Lewin ST retained Attorney Lewin. On Tuesday, October 9, 2018 ST and Attorney Lewin appeared in Lowell District Court for ST’s arraignment. Attorney Lewin secured ST’s release on personal recognizance and the case was continued to November 8, 2018 for a pre-trial hearing. Attorney Lewin spoke with ST’s wife and son. Attorney Lewin was able to obtain written statements from ST’s wife that ST’s son had actually struck ST prior to ST’s pushing the son away. In addition ST’s son signed a statement saying that he (the son) had touched the father first.

Attorney Lewin explained to ST that the DA’s Office would not agree to dismiss the case at the pre-trial hearing but that the case would have to be set down for trial. Attorney Lewin provided the written statements by the wife and son to the District Attorney. On November 8, 2018 ST and Attorney Lewin appeared at Lowell District Court for the pre-trial hearing. The DA offered a general continuance of the case coupled with a dismissal. A general continuance is where the case is continued to another date (typically 6 months) and at the end of that period of time the case gets dismissed. A general continuance is typically a good result because there is no admission of guilt and there is no finding of guilt. It is a dismissal that takes a little time to get there. Attorney Lewin (and ST) felt strongly that the case could be outright won if taken to trial. ST turned down the offer of a general continuance and the case was set down for trial on December 3, 2018.

On Monday, December 3, 2018 ST and Attorney Lewin appeared in Lowell District Court in the Trial Session. The case was called and Attorney Lewin answered that the Defense was present and ready for trial. The DA stood up and said that they were not ready. Attorney Lewin moved that the case be dismissed. The Judge presiding in the Courtroom granted Attorney Lewin’s Motion and ordered the case dismissed.

On September 8, 2018, NB, a 48 year old Lebanese woman from Lawrence, went into the Stop & Shop Supermarket in Methuen and put $157.24 worth of food into her shopping cart. She then proceeded to walk out the door of the store without paying for the food. NB was stopped by a store loss prevention officer and the Methuen Police were called. NB was charged with shoplifting. On November 1, 2018 NB appeared at Lawrence District Court for a Clerk-Magistrate Hearing. Until about one year ago these shoplifting cases in Lawrence District Court were routinely disposed of at a Clerk-Magistrate hearing without a criminal complaint being issued. Over the last year the Clerk-Magistrates have been issuing criminal complaints in shoplifting cases where the amount in question is over $100 or in cases where the evidence suggests that the accused has engaged in shoplifting before. The Clerk-Magistrate issued a complaint against NB and she had to return to Court for an Arraignment on November 29, 2018. NB retained Attorney Robert Lewin from North Andover. On November 29, 2018 NB appeared in Lawrence District Court and after a brief conference between her lawyer and the Assistant District Attorney the shoplifting charge was ordered dismissed. NB left the court very relieved.

It is important to understand that in Lawrence District Court the Clerk-Magistrates now look closely at the evidence in these shoplifting cases and will often issue a criminal complaint.

On April 22, 2018 RB, a 24 year old sales associate from Wilmington was driving his car on North Street in Tewksbury. He was making the turn from North Street onto Livingston Street when he lost control of the car. He struck and demolished a stone wall and a mailbox. He then left the scene and drove about 400 feet from the scene of the accident where his car could go no further. The whole accident was captured on a security video. The police responded and found RB. At first he told the police that his car had been struck by a hit and run driver but then he admitted that he had struck the wall and the fence.

The police cited RB for Leaving the Scene of a Property Damage Accident, Negligent Operation, Speeding, and Marked Lane violation. RB and his father, several days later, returned to the scene of the accident and went and spoke to the owner of the property where the wall and mailbox had been situated. RB’s father hired a contractor to come in and rebuild the wall and rebuild and replace the mailbox. The work was done within a matter of days.

The owner of the property – luckily for RB – was a very understanding man. He wrote a letter stating that everything had been repaired and that RB had apologized to him and that he sought nothing further from RB.

On April 21, 2018, JR, a 31 year old administrator, was on his way home to Lynn when he got stopped at a State Police Roadblock in Saugus on Route 107 (the Lynn Marsh Road). He entered the roadblock, had a brief interaction with the greeter, and was then directed into the testing area. Field sobriety tests were administered and he was arrested and charged with one count of operating under the influence of intoxicating liquor. He refused a breathalyzer test. JR went to court and got arraigned and then interviewed several lawyers. JR then retained Attorney Robert Lewin from North Andover. Through filing the appropriate discovery motions Attorney Lewin was able to obtain all the State Police Roadblock Documents for that particular roadblock. Roadblock law is a very detail oriented area of the law. The police have to dot all the i’s and cross all the t’s. Attorney Lewin – after reviewing the police reports and the roadblock documents – found a problem with the police greeter at the roadblock. The greeter was not using a state approved greeting. Attorney Lewin prepared and filed a Motion to Suppress all the evidence that the police had gathered after the stop of JR’s car in the roadblock on the grounds that the greeting being used by the greeter did not meet the requirements of the roadblock law. On October 11, 2018, after a full hearing at which the State Police greeter testified, the Judge agreed with Attorney Lewin and ordered that ALL the evidence gathered by the state police be suppressed (not used). This left the Commonwealth with no evidence. Attorney Lewin then filed a Motion to Dismiss and on November 12, 2018 JR and Attorney Lewin appeared in Lynn District Court and the Judge granted the Motion to Dismiss and the charge was ordered DISMISSED.

JR, who had just become a father, gave Attorney Lewin and big handshake and left the Court a very happy man.

On July 19, 2018, KL, a 28 year old male data analyst went out with his girlfriend to a restaurant/bar in Newburyport. They ate and had several drinks and then at about 10:30 PM they left the bar and got into KL’s car which was parked in the parking lot. As KL backed up, the rear end of his car came into contact with the rear bumper of another vehicle that was parked in the parking lot. According to the police report there was “minor damage” to the passenger side rear bumper of the parked vehicle. KL got out of his vehicle and walked over to the parked vehicle. There were several witnesses in the parking lot to the entire event. KL then got back into his vehicle and drove away. The police were called and responded. The witnesses told the police what had happened and furnished the registration plate number of KL’s vehicle to the police. From the plate number the police were able to ascertain the owner of the offending vehicle (KL). The police then went into the restaurant/bar and showed the bartender a photo of KL (which the police had obtained on their portable data terminal from the Registry of Motor Vehicles). The bartender immediately identified the picture of KL as a customer who had been in the bar with a woman. The bartender was able to get the credit card charge slip that KL had signed and it bore KL’s name.

The police attempted to speak with KL but were not successful. The police issued a citation for Leaving the Scene of a Property Damage collision. KL consulted with and retained Attorney Robert Lewin from North Andover. Attorney Lewin instructed KL to immediately request a hearing before a Clerk-Magistrate at the Newburyport District Court which KL did. Attorney Lewin was able to obtain a copy of the Police Narrative Report. Attorney Lewin reached out to the police prosecutor to see if a resolution of the case could be reached at the Clerk-Magistrate hearing. On September 7, 2018 KL and Attorney Lewin appeared at the Newburyport District Court for the Clerk-Magistrate hearing. The owner of the struck vehicle was not present. The purpose of a Clerk-Magistrate hearing is for the Clerk to decide whether there is probable cause to issue the complaint. If the Clerk-Magistrate finds no probable cause then no complaint will be issued. If the Clerk-Magistrate finds probable cause then the Clerk-Magistrate may issue the complaint; or the Clerk-Magistrate may, in his or her discretion, continue the hearing for a period of time and at the end of that period of time if there are no reports of any further trouble with the law then the Clerk-Magistrate will dismiss the application for the criminal complaint and not issue the complaint.

At the hearing on September 7, 2018 the notion of an Accord & Satisfaction was discussed. There is a statute in Massachusetts that provides as follows:

On June 5, 2018, AN, a 26 year old nurse from Cambridge, was driving from Methuen to Boston. She came to the Rotary at 110 & 93 in Methuen and was stopped at a red light on Rt. 110. Her foot came off the brake and her car rolled into the back end of the car in front of her. AN and the driver of the other car exited their vehicles. The other driver, a 69 year old man with a short fuse, was incensed that AN had struck his vehicle. AN looked but could not see any damage to the other vehicle. Because they were stopped in a lane of moving traffic the man got back in his car and told AN to pull off the road. The man drove his car to the right side of the road and ultimately into a parking lot.  AN followed but then left the scene without exchanging her information with the other driver. The other driver got her license plate number and reported the accident and the hit and run to the police. The police attempted to reach AN but were not successful. Subsequently AN received a citation for Leaving the Scene of a Property Damage Accident.

AN consulted with and retained Attorney Robert Lewin from North Andover. Attorney Lewin immediately contacted the police prosecutor from Methuen and obtained a copy of the police report. Attorney Lewin also immediately requested a hearing by a Clerk-Magistrate of the Court. Getting a hearing is important as it can avoid avoid a criminal complaint from being issued and it then avoids a criminal record and it avoids going in front of a judge.

Attorney Lewin sent the police prosecutor a lengthy letter detailing AN’s background, her education, her occupation as a nurse and he detailed the facts of the alleged “hit and run” and that the reason AN left the scene was she was concerned for her personal safety given the other driver’s behavior.

On May 4, 2018 BJ, a 29 year old mechanical engineer, left work at 5:00 PM and drove to a friends home in Lynn, MA to watch a Bruins playoff game. BJ was at the friend’s home from 5:30 to 10:30. At 10:30 BJ left his friend’s home and headed home. He traveled Route 129 from Lynn and was headed ultimately to his home in Andover. He came to the large interchange at Routes 129, 128, I-95, and 1. A state police officer was headed to the interchange  from I-95 and as the two vehicles approached one another at a merge point the Trooper claimed that BJ failed to yield (there were 2 yield signs in the lane that BJ was traveling on). The Trooper said he had to slam on his brakes to avoid a collision with BJ. The Trooper then followed BJ and ultimately pulled him over as he took the ramp down onto Rt. 95 South.

The Trooper administered a series of field sobriety tests all of which the Trooper claimed that BJ failed. BJ was arrested and brought to the State Police Barracks in Danvers where he was booked. BJ spoke with his wife on the phone and asked her to come to the Barracks with $40.00 for bail. After two hours BJ was bailed out and went home with his wife.

BJ went to court for an arraignment and then consulted with and hired Attorney Robert Lewin from North Andover to represent him. Attorney Lewin took a detailed statement of the facts from BJ and his wife. A number of field sobriety tests had been administered to BJ and it was clear to Attorney Lewin that BJ had done extremely well on the tests. The case was set down for trial on August 28, 2017. Attorney Lewin and BJ and his wife had several long trial preparation sessions. Attorney Lewin thoroughly prepared BJ (and his wife) to testify on both direct examination and cross examination. Attorney Lewin did a “mock trial” (a practice trial) in the office with BJ.

On May 20, 2018 NU, a 31 year old pest control worker, was arrested in Andover for assaulting his sister by alleging throwing her to the ground during an alcohol fueled argument. The was his third arrest for assault and battery in the last two years. Attorney Robert Lewin from North Andover had represented NU in the first two cases. One ended in a finding of not guilty and the second was dismissed. NU again consulted with and retained Attorney Lewin to represent him in this case. It was NU’s claim that his sister in an unprovoked attack had sucker punched NU in the mouth cutting his lip open and that in self-defense he had pushed her away from him. The sister called 911 and NU was arrested and charged.

The sister admitted to the police that she had punched NU in the mouth but she told the police that she had done that to defend herself. It was very apparent to Attorney Lewin that the sister had a valid Fifth Amendment claim not to testify – if she wanted to exercise it. Attorney Lewin advised NU that NU had every right to apply for a criminal complaint against his sister to level the playing field. NU did not want to press a criminal charge against his sister; however, the sister was informed that she herself had exposure to a charge being brought against her and  that she had a right not to testify against her brother.

On June 25, 2018 NU and Attorney Lewin appeared in Lawrence District Court for a pre-trial hearing. Attorney Lewin explained to the DA that the sister had a valid Fifth Amendment claim and would probably exercise the claim. As is their usual custom the DA refused to dismiss the case at the pre-trial hearing. The case was continued for trial to Tuesday, August 21, 2018.