JC, a 28 year old laborer from Lawrence, MA lost two fingertips in an industrial saw accident in May of 2012. His doctors prescribed percocette for the pain and he became addicted. To support his habit he became a low level percocette dealer.

On February 26, 2013 JC and another dealer drove to the Burger King on Route 110 in Methuen, MA. JC was driving. JC pulled alongside a Mercedes in the BK parking lot and the passenger in JC’s car exchanged drugs for money with the driver of the Mercedes. JC then pulled his vehicle alongside another vehicle in the parking lot and once again the passenger in JC’s car exchanged drugs for money with the driver of the other vehicle. All of this was being watched by undercover police in the parking lot. The Mercedes got away but the second vehicle was stopped as it exited the parking lot. The operator gave up the drugs he had purchased and told the police that he had purchased the drugs from the passenger in JC’s vehicle. JC’s vehicle with both JC and his passenger still inside was surrounded in the parking lot by the police. Both JC and the passenger were ordered out of the car. The passenger was searched and drugs packaged for sale were found on his person and under the front passenger seat. In addition a small packet of heroin was found in his pant waist. JC had no drugs (or money) on himself. Nevertheless both JC and his passenger were charged with Distribution of Drugs.

JC had a decent case to take to trial. He had not personally distributed any drug and he had no drugs or money on himself. The government’s theory of the case was that JC had “aided and abetted” his passenger in distributing drugs by driving him to the parking lot and by driving him from one customer to another in the parking lot. In such a case the law requires the state to prove two things: (1) That JC participated in some way in the crime, in this case by helping the passenger by driving and (2) That JC shared the intent required to commit the crime, in this case the intent to deal drugs. A person who is found guilty of aiding and abetting in a crime is considered guilty of the underlying crime (distributing drugs) and is punished the same as the person who actually distributes the drugs. If convicted JC did not face any mandatory sentence but he did face a three year loss of his driver’s license and the potential of a jail sentence. (Drug convictions in Massachusetts carry a mandatory loss of license – 3 years in the case of distribution class B with the right to a hardship license after 18 months.)

JC retained Attorney Robert Lewin. Attorney Lewin explained all of JC’s options in detail. If the case could be continued without a finding then JC would not lose his license and there would be no conviction. JC had got into drug treatment. He was in a suboxone clinic and was being randomly tested for drugs. He had a long range goal of getting weaned off the suboxone and he was committed to staying off drugs. Attorney Lewin approached the DA’s Office about a resolution of the case. The DA agreed that if JC pleaded guilty they would not look for jail time, but the DA was going to ask for a guilty finding and probation and the three year loss of license. Attorney Lewin explained to JC that he could plead and ask for a continuance without a finding; that would not involve any loss of license. Attorney Lewin explained to JC that he had a triable case: if he were found not guilty then there would be no punsihment, no jail or probation and no loss of license. On the other hand if he were found guilty he would lose his license for three years and the Judge could send him to jail (not likely).

After much discussion JC decided to take a shot at a plea to see if he could get a continuance of the case without a finding. On April 24, 2013 JC and Attorney Lewin appeared in Lawrence District Court. The case proceeded on the basis of a “tender of an admission” (a plea offer where if the Judge is unwilling to give the defense the result they request the Defense can withdraw the plea offer and it can never be used against the defense in any later proceedings). The DA made her pitch for a guilty finding; the DA pointed out that some years earlier JC had been given the benefit of a continuance without a finding in a prior drug possession case. Attorney Lewin explained to the Judge how it was that JC became addicted to the percocettes. Attorney Lewin explained how JC had put himself into a suboxone clinic; that all his random drug screens were negative; and that he was committed to sobriety. Attorney Lewin also explained to the Judge that JC was working full time to support himself. In effect JC was doing everything we want a person on probation to do. Attorney Lewin also explained to the Judge that JC needed his license to work; that if a guilty finding were to be entered JC would lose his license and he would lose his job. The Judge agreed with Attorney Lewin’s pitch and ordered the case continued without a finding for 18 months with continued drug treatment and no loss of license. Attorney Lewin has great confidence that JC will remain drug free, will get weaned off the suboxone, and will be a productive citizen. In 18 months if JC complies with the terms of his probation then the case will be dismissed. JC can then petition the court to seal the record of the case. If the Court grants the petition to seal the record then it will be as it the case never happened! If that had been you, would you have rolled the dice and gone to trial or would you have taken the plea?