OUI SERIOUS BODILY INJURY MANDATORY SIX MONTH SENTENCE AVOIDED

On August 31, 2012, AS, a 67 year old retiree, went out for a few drinks at a local pub in Haverhill. Late at night he left the pub highly intoxicated, got into his SUV, and tried driving to his home in Methuen. In the center of Haverhill is a War Memorial which is situated on a grass plot. AS drove his SUV off the roadway, over the curb and sidewalk, into the War Memorial area. In the area was a homeless man sleeping a a bench. The front of AS’s SUV struck the bench going up over the bench over the homeless man sleeping on the bench. AS backed his car up and left the area as if nothing had happened. AS continued on his way eventually striking a roadsign and knocking it down. Once again he continued on his way. He travelled from Haverhill into Newton, NH where he drove off the road into a ditch. Witnesses had seen his car drive over the bench with the homeless man and called in his registration plate to the police. Other witnesses saw him strike the sign and called that into the police. A BOLO (Be On The Lookout) was put out by the Haverhill Police and picked up by the Newton, NH Police who had discovered AS in his car in the ditch. AS was removed from his car; he had urinated himself; he was arrested for DUI in NH. The Haverhill and Mass. State Police responded to NH to continue their investigation. It was not known if the homeless man on the bench would survive his injuries.

AS was charged with Aggravated DUI in NH (the Aggravatiung circumstance being a high Breath Test reading). In Massachusetts AS was charged with OUI/Negligent Operation Causing Serious Bodily Injury, Two counts of Leaving the Scene Property Damage, Leaving the Scene Personal Injury, two Counts of Aggravated Reckless Assault & Battery by Dangerous Weapon, and a number of civil motor vehicle infractions.

AS retained Attorney Robert Lewin. Attorney Lewin brought in Associate Counsel to handle the NH piece of the case.

At his arraignment in Haverhill District Court the Commonwealth sought to have AS detained (held without bail). After a detention hearing lasting several hours, the Judge in Haverhill ordered AS released on conditions that he neither drink nor drive and he was required to be subject to alcohol testing 3 times per day using an intoxilator machine installed in his home.

The NH end of the case got resolved well. AS was ordered to complete a first offender DUI program and NH suspended his right to operate for 90 days. The charge in NH got reduced to a simple DUI.

The Massachusetts case was not a triable case. The evidence against AS was overwhelming. Attorney Lewin set up a strategy for AS to see if jail could be avoided. The OUI/Negligent Operation Causing Serious Bodily Injury Charge carries a six month mandatory minimum sentence. If the DA’s Office could not be convinced to reduce that charge AS was going to the House of Correction for a mandatory minimum six months. At Attorney Lewin’s direction AS consulted with a LADC (Licensed Alcohol and Drug Counselor) and set up a treatment schedule. In addition AS began attending AA meetings several times per week and getting an AA Attendance Sheet signed at each meeting. Attorney Lewin obtained a favorable report from the LADC. Letters were obtained from family members. AS’s work history (he wan now retired) was put together and verified. All of AS’s breath tests (3 times a day) were negative.

Attorney Lewin went to the District Attorney’s Office. The DA was looking for AS to do 1 year in jail on the OUI/Negligent Operation Causing Serious Bodily Injury Charge to be followed by 5 years of probation with the first 6 months to be confined at home. The negotiations between Attorney Lewin and the DA’s Office extended over two months. Finally the DA’s Office agreed to reduce the OUI/Negligent Operation Causing Serious Bodily Injury charge to OUI Causing Serious Bodily Injury. The reduced charge does NOT carry any mandatory minimum sentence. More negotiations continued. Ultimately the two sides reached an agreement to disagree in parts of the recommendations being made to the Judge.

On April 23, 2013 AS and Attorney Lewin and the DA appeared before the Judge in Haverhill District Court. AS pleaded guilty to the reduced charge of OUI Serious Injury and 2 counts of Leaving the Scene Property Damage. The two counts of reckless assault and battery by dangerous weapon were dismissed by agreement. The one count of leaving the scene person injury was dismissed by agreement (Attorney Lewin had successfully argued to the DA that AS could not have known and did not know that he had hit a person and then left.) Attorney Lewin presented the Judge with a lengthy sentencing memorandum with all the necessary reports attached. The DA asked for a suspended sentence with a term of Probation and home confinement for the first six months. Attorney Lewin asked for a suspended sentence with a term of probation and no home confinement. After lengthy presentations by both the Assistant DA and Attorney Lewin the Judge imposed the disposition recommended by Attorney Lewin. NO jail. NO home confinement. Probation.

When the case was finished Attorney Lewin and AS and AS’s wife had to go down to the probation office to meet with a probation officer. They all looked at each other – in great relief. When AS and his wife first consulted Attorney Lewin, Attorney Lewin told AS and his wife that there was a very strong possibility that AS would be going to jail for six months. Now he knew he would not be going to jail.

AS and his wife sent Attorney Lewin a very generous gift certificate to one of Attorney Lewin’s favorite restaurants along with a note that reads as follows: “Thank you so much for helping us with this serious case. When we met with you the first time and you explained the charges and the law, the future looked grim. But with your hard work, the outcome was much better than we anticipated. You will be highly recommended. In gratitude please enjoy this gift certificate with your wife. We will never forget what you did for us. Sincerely …”

As a lawyer it doesn’t get much better.