Articles Posted in DWI/OUI

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 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 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 April 27, 2017 TL, a 40 year old immigrant from Laos who is now a citizen, admitted to sufficient facts to an OUI first offense in Lowell District Court. The Judge continued the case without a finding and placed TL on probation for one year and suspended his license for 45 days. TL was eligible to get a hardship license but did not. On May 10, 2017, during the 45 day license suspension period, TL was driving to work when he got pulled over by the police in Ayer. The police arrested TL and charged him with operating after suspension of his license where the suspension was for an OUI case. A conviction under this law carries (1) a maximum sentence of 2 1/2 years and a mandatory minimum sentence of 60 days in the House of Correction and (2) an additional one year loss of license. TL was brought to Ayer District Court where he was arraigned and held and then transported to Lowell District Court where he was served with a notice of probation surrender and detention. In Lowell District Court, TL faced his continuance without a finding being revoked, a guilty finding being entered, and a sentence of up to 2 1/2 years being imposed along with a one year loss of license. Prospects looked very grim for TL. TL – in jail – asked his wife to find him a lawyer.

TL’s wife consulted with and retained Attorney Robert Lewin from North Andover. It was apparent to Attorney Lewin that none of TL’s problems would have arisen had he simply applied for the hardship license. Attorney Lewin went to the jail and met at length with TL. It appeared as if TL’s lawyer in the original case in Lowell had not advised TL about getting a hardship license so he could lawfully drive during the 45 day period.

Attorney Lewin went to Lowell District Court and met with TL’s Probation Officer. Attorney Lewin explained the situation to her and she responded very favorably to Attorney Lewin’s request to simply reprobate TL.On June 6, 2017 TL and Attorney Lewin appeared in Lowell District Court before Judge Fortes – a very tough District Court Judge. The probation officer came into the Courtroom and agreed with Attorney Lewin’s request that although TL violated probation that the Judge should simply put him back on probation (with the continuance without a finding still in place with no changes in the probation and no additional loss of license). The Judge adopted the request and the probation violation went away with no negative effects for TL.

DT is a 29 year old software developer from India in the US on a work visa. On December 10, 2016 he went out for a few drinks and on the way home crashed his car in Lowell. The Lowell police responded to the accident scene and DT gave the police a story that he was too drunk to drive and another fellow (whom DT did not know) was driving the car and that other fellow took off after the accident. The police did not arrest DT nor did they cite him. The next day he gave the same report to his insurance company. About a week later DT received a letter from the Lowell Police saying that they were investigating his accident and they had video evidence that he was in fact the driver. The letter indicated that the police were contemplating charging him with DUI and making a false statement to a police officer and hit and run. (A hit and run charge in Massachusetts can be based on a driver’s failure to identify himself as the driver at the scene of an accident.) DT’s insurance company contacted DT about his “story” and expressed concerns about the veracity of DT’s story. (Making a false insurance claim is a criminal offense.) DT contacted Attorney Robert Lewin of North Andover. Attorney Lewin explained to DT that Attorney Lewin knew the Lowell officer in charge of his investigation. Attorney Lewin explained to DT that the best thing to do in DT’s situation would be for DT’s lawyer to quickly communicate with both the Lowell Police Officer and the representative for the insurance company. DT told Attorney Lewin that DT had spoken to numerous lawyers and had gotten all kinds of advice but that Attorney Lewin was the first lawyer who set out a plan of action and was prepared to move on it immediately before things got worse. DT retained Attorney Lewin.

Within 2 hours of being retained Attorney Lewin had DT’s entire situation resolved. Attorney Lewin called the Lowell Police and spoke with the officer in charge of the investigation. The officer agreed that DT would not be charged with any criminal offenses arising out of the accident or his false statement to the officer at the scene of the accident. Attorney Lewin then spoke with a representative from the insurance company. The insurance company then not only agreed not to seek a criminal charge against DT for filing a false insurance claim but the company agreed to pay DT for the complete loss of his vehicle!

Attorney Lewin explained to DT the old adage: “When you find yourself in a hole, stop digging.” DT kept getting himself in deeper and deeper with his stories. By jumping on the case immediately and by contacting the police and the insurance company immediately, Attorney Lewin was able to avoid DT from being prosecuted and from being deported. DT is now a happy camper.

In May of 1984 KW, then age 24, was arrested in Andover for Operating Under the Influence of Liquor and several other criminal offenses. One month later in June of 1984 KW was arrested again for Operating Under the Influence of Liquor in Wakefield. KW then flew the coop; he left Massachusetts and has been living in Arizona ever since. Warrants for KW’s arrest were issued in both Lawrence District Court and Malden District Court. He was able to get an AZ license and for years ignored the two warrants in MA. Recently Arizona refused to renew KW’s AZ license because he was under suspension in MA because of the two warrants. KW was hesitant to return to MA for fear that he would get locked up – particularly when he went to the first court to get the warrant cleared. He feared that the Judge in the first court would order him put into custody and held for the second court.

KW contacted Attorney Robert Lewin from North Andover. Attorney Lewin explained to KW that if he ever wanted to drive legally again he would have to get these warrants and the cases cleaned up. KW retained Attorney Lewin. Attorney Lewin was able to get the papers from both courts. The police officer in the Wakefield case retired just four months ago; however, no police report could be found in the Wakefield case. The police officer in the Andover case had retired almost ten years ago, but he was still around(!) and he had the police report from the case!!

On November 21, 2016 KW and Attorney Lewin went into Malden District Court and the Judge ordered the Malden Court warrant cancelled. The Malden Court case was then continued to December 2, 2016 to give the DA one last opportunity to see if they could put the case together. The Judge did not lock KW up on the warrant for Lawrence District Court but allowed KW to go with Attorney Lewin to Lawrence. Two hours later KW and Attorney Lewin appeared in Lawrence District Court. As in Malden District Court, the Judge ordered the warrant in Lawrence District Court cancelled and that case was continued to the same December date.

On May 3, 2016 ZA, a 25 year old grocery clerk from Lynn, ingested a substantial quantity of drugs. He got in his car and was driving through Topsfield. The police found ZA in his vehicle. He appeared to be unconscious. The car was running; his foot was on the brake; his arms were on the steering wheel; and his body slumped over the wheel. The police noticed drool coming from his mouth. The police turned the car off and got ZA up and out of the car. During a search of ZA and the vehicle the police found the following:

  •  Soft case containing $135.00 in rolled up money.
  • Envelope containing $400.

EC, a 69 year old gentlemen from Stoneham, had 3 convictions for OUI in Massachusetts. His last conviction was in 2006. As a result of that conviction he lost his license for 13 years [8 years for the conviction + 5 years for refusing the breath test]. In 2010, EC retained Attorney Robert Lewin from North Andover in an attempt to get a hardship license. Attorney Lewin had EC document attendance at AA meetings over a number of months and Attorney Lewin had EC enroll for treatment and counseling with a LDAC (Licensed Drug & Alcohol Counselor). A report was obtained from the LDAC. EC obtained a letter from his employer documenting the need for a license. Attorney Lewin and EC went to the Registry of Motor Vehicles (in Wilmington) for a hearing on obtaining a hardship license. After a lengthy hearing the hearing officer took the case under advisement. After several weeks EC received a notice from the RMV that his application for a hardship had been approved. The hardship license was granted (8 AM to 8 PM) with an IID (Ignition Interlock Device). EC got the IID installed in his car obtained the hardship license and life was good.

On December 19, 2014 EC went up to New Hampshire. The hours past by and at about 10:30 PM EC headed back home to Stoneham. He was pulled over on Rt. 95 in Boxford for speeding by the State Police. When the police officer saw that EC’s driving privileges ended at 8:00 PM the Trooper wrote EC up for speeding and unlicensed operation. EC again contacted Attorney Lewin. Attorney Lewin instructed EC to request a clerk-magistrate hearing immediately (that day). EC took the citation to Haverhill District Court and requested a Clerk-Magistrate Hearing. On January 20, 2015 EC and Attorney Lewin appeared in Haverhill District Court for the hearing. Attorney Lewin explained to the clerk-magistrate that EC had not been drinking at all and that this was simply an example of EC having let the time pass beyond 8:00 PM. Attorney Lewin requested that a criminal complaint not be issued against EC. The State Police did not object and the Clerk then denied the application for the criminal complaint and found EC not responsible of the speeding charge.

On March 16, 2014 FA (a 28 year old male auto mechanic from Malden) was arrested in Wakefield at about 5:30 AM and charged with OUI Liquor, 2nd Offense. FA had been at a friend’s house playing video games and had consumed several beers during the course of the night. He and his host and another friend fell asleep at around 2:00 AM. FA awoke at about 5:00 AM and with one friend decided to drive to his own home. FA and the friend got into FA’s car. FA pulled down the street took a right turn and suddenly went across the road into a utility pole. FA, who had not been wearing his seat belt, hit his head against the windshield and had a head injury. The police, fire, and EMTs all responded to the accident scene. FA declined medical treatment. The police smelled liquor on FA’s breath, claimed he was unsteady and was slurring his speech. Field sobriety tests were administered which FA could not do. He was arrested for OUI Liquor. A record search by the police revealed a prior OUI conviction from 2005. FA was brought to the Wakefield Police Station and declined to take a breath test. As a result of refusing the breath test his license was revoked for three years. FA went to Malden Court the next morning and was arraigned and his case was continued for pre-trial. FA sought out Attorney Robert Lewin.

Attorney Lewin took a detailed statement of the facts and then spoke with FA’s two friends. It became clear to Attorney Lewin that FA’s case was a very triable case. The crash of the car into the utility pole could be explained by a broken tie rod. His unsteadiness and slurred speech were the results of the head injuries he sustained in the accident. The poor performance on the field sobriety tests was directly related to (1) his injuries in the accident and (2) the fact that it was very cold outside and he was dressed only in dress pants and a dress shirt. No sweater or jacket. Attorney Lewin also turned the focus back onto the Wakefield Police. That police station is loaded with video cameras and video monitors; yet the officers testified that they were unaware if the video system had the ability to record. That was testimony the jury must have found hard to believe. After an all day trial on June 24, 2014 the case went to the jury at 4:00 PM; at 4:35 PM the jury came in with a NOT Guilty verdict.

The OUI Law permits (but does not require) the trial judge to order the Registry of Motor Vehicles to reinstate an accused’s license following a NOT Guilty verdict. On July 8, 2014 FA and Attorney Lewin appeared before the trial Judge and after a hearing the Judge granted Attorney Lewin’s Motion to restore FA’s License. FA left the court house, gave Attorney Lewin a big “thank you” and headed for the Registry to get his license.

On March 14, 2014 EB, a 42 year old RN was observed operating a motor vehicle on the Mass. Pike. The state police ran a random check of the Registration Plate and it indicated that the owner of the vehicle was a 42 year old female whose license had been revoked for two years following a conviction for OUI 2nd Offense in November 2013. The trooper pulled EB over and she immediately confessed to the officer that her license was revoked for two years as the result of her conviction for OUI Second Offense. After considerable pleading by EB the Trooper did not arrest EB but issued her a citation for OAS for OUI (Operating After Suspension where the suspension is the result of an OUI Conviction). The trooper had her car towed from the scene. This offense carries a mandatory minimum sentence of 60 days in the House of Correction, no exceptions.

EB immediately contacted Attorney Robert Lewin. Attorney Lewin directed EB to IMMEDIATELY go to the Waltham District Court and request a hearing. The next day EB went to Waltham District Court and requested a hearing.

EB was a widow and the single parent of a 12 year old son. She worked full time as a nurse and was a cancer surgery survivor. The best hope for avoiding the 60 day jail sentence (maximum 2 1/2 years) was to try to resolve the case at the Clerk-Magistrate Hearing without a criminal complaint issuing. Attorney Lewin reached out to the State Trooper who issued the citation to thank him for not arresting EB, but rather citing her.