Articles Posted in DWI/OUI

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.

At about 2:00 AM on February 4, 2014 the Andover police noticed a car parked on a street near downtown Andover. The car was running and the lights were on. MG, a 41 year old man from North Andover was alone in the car, in the front seat, slumped over the steering wheel. He appeared to be either asleep or passed out. The police banged on the car and rocked the car in an attempt to get his attention – no luck. The police then smashed the rear driver’s side window and gained access to the car and unlocked the door. MG was alive and breathing but efforts to wake him were progressing slowly. According to the police report a strong odor of alcohol was coming from him and the car. In addition the police found a beer carton in the back seat with a number of empty beer bottles in the carton. Finally the police were able to awaken MG. According to the police report MG was disoriented, was slurring his speech, and had bloodshot and glassy eyes. The police ordered him out of the car. The police report indicates he was swaying when he stood. The police asked MG to perform field sobriety tests and he refused. The police arrested MG for operating under the influence of alcohol and he was brought to the police station where he was booked and he refused to take a breath test. For refusing the breath test MG lost his license for 180 days (mandatory loss of license for a breath test refusal if you have no prior DUI offenses). MG hired Attorney Robert Lewin.
Attorney Lewin met at length with MG to go over the facts and prepare the case. Attorney Lewin also made a demand of the Andover Police Department (through the DA’s Office) for a copy of any video recordings made in the police station book area of MG. The “official response” from the DA’s Office was that there was no video. On April 7, 2014 MG’s case went to a jury trial in Lawrence District Court. The arresting officer testified pretty much as set forth in his police report. The booking officer took the stand and this is where the state’s case began to crumble. The booking officer, in response to a series of questions asked by Attorney Lewin, described the video system in the Andover Police Station, and in particular in the booking area. He described how there is a video camera that points directly at an arrested subject. He also testified that to his knowledge there is a recording made. He testified that to his knowledge no effort had been made to locate the video of MG. Attorney Lewin asked to approach the Judge with the DA and Attorney Lewin moved for a mistrial on the grounds that he had asked for the video, was told there was no video, and now it appeared that there may very well be a video. The Judge denied the request for a mistrial and permitted the trial to continue. MG testified that he had got up on the morning of February 4 at 5:00 AM; that he drove from North Andover to Andover to the commuter rail station; that he parked his car on the street; that he took the train to work and worked until ~ 5:30 PM; that he then walked from his office in Boston to a sports pub in Boston where he met a good friend for dinner; that he had dinner with the friend and had two beers during dinner plus water and a diet coke; that at 8:15 PM they both then left; that he returned to work and worked until ~11:00PM; that he then walked from work to North Station; took the commuter train back to Andover and walked to his car. He testified that it was very cold and his windows were frozen over. He got in his car, started the car up, put the front defroster on and the rear defogger on, and then fell asleep. The next thing he remembered was being woken up by the police. He testified that he had fallen into a deep sleep and it took him a minute to wake up; he also testified that he was sober. His friend with whom he had dinner also testified.
The trial had started at about 10:00 AM and the case went to the jury at 2:55 PM; twenty minutes later at 3:15 PM the jury came in with a verdict of not guilty. Attorney Lewin then filed a Motion for Return of MG’s License which the court granted. MG was arrested on February 5, 2014 and found not guilty by a jury on April 7, 2014 and has his license back. As MG and Attorney Lewin left the Lawrence District Court MG gave Attorney Lewin a firm handshake and a big thank you.

On September 20, 2011 GA, a 50 year old software engineer from Acton was on a business trip to California and got arrested for DUI in California. On January 25, 2012 he pleaded nolo contendere to a reduced charge of reckless operation in CA. He had also refused a breath test in CA. CA revoked his right to operate a motor vehicle in CA for one full year. Massachusetts never got wind of the CA case and GA continued to drive and his MA license remained active. GA’s license was up for renewal in March of 2014 and the RMV Computer then picked up the CA information. The RMV then revoked his MA license for 1 year effective March 7, 2014 for the DUI; the MA RMV also suspended his license indefinitely for the CA chemical test refusal effective February 9, 2014. GA, in the meantime, had never actually got his driving privileges reinstated in CA. So now he was suspended in both CA and MA and both states were telling him that he could not be considered for reinstatement until he got cleared in the other state – a real catch 22. GA contacted and retained Attorney Robert Lewin.

Attorney Lewin immediately researched the issue of getting his driving privileges reinstated in CA. Attorney Lewin explained to GA that the MA RMV would not do anything until GA got reinstated in CA. The CA reinstatement process was sorted out; an SR-22 Insurance Form was obtained; and GA was able to get his driving privileges in CA reinstated. On March 19, 2014 GA and Attorney Lewin then went to the RMV in Boston for a hearing in the Driver Control Unit. Attorney Lewin had prepared a lengthy Memorandum of Law for the RMV and had obtained certified copies of all the paperwork from CA. At the conclusion of the hearing the RMV backdated the 1 year MA suspension for the OUI to the date of the CA conviction which meant that that suspension was now expired. The indefinite suspension for the chemical test refusal was released because CA had reinstated GA’s driving privileges. The RMV reinstated his license (a full license) on the payment of the $500 reinstatement fee which GA paid immediately.

GA had been advised to bypass the RMV hearing and go directly to the Board of Appeal. Attorney Lewin said no; we should go to the RMV first as we have a good shot of getting your license back at the RMV. GA was ecstatic and walked out of the RMV with his MA license fully reinstated.

On November 8, 2012 in the early afternoon, DB, a 47 year old roofing company foreman, was pulled over by the Malden Police on the basis of an anonymous tip. He had just pulled out of the parking lot of a local bar in Malden where he had been drinking for about one and a half hours. He was asked to exit his vehicle which he did. He was asked to perform field sobriety tests and he refused. He was asked to submit to a breath test and he refused. Based on the observations of his condition by the police he was arrested and charged with operating under the influence. He was brought to the Malden PD where a check of his criminal record revealed that he had three prior convictions dating back to 1984. As a result of his refusing the chemical test he was immediately subjected to a lifetime loss of his license. Massachusetts law imposes a mandatory lifetime loss of license on anyone who refuses a chemical test following an arrest for OUI if that person has three prior convictions for OUI in his lifetime at the time of the arrest. DB also faced a potential 5 year state prison sentence or a 2 1/2 year sentence to the House of Correction. An OUI 4th offense carries a mandatory minimum 2 year sentence of which 1 year must be served before parole eligibility. DB retained Attorney Robert Lewin.
Attorney Lewin immediately got the police reports and reviewed them with great care. Attorney Lewin obtained the turret tapes from the Malden PD to hear the dispatch information that was given out to the officers in the street and in particular to the officers involved in pulling DB’s car over. The stop of DB’s car by the police did not seem right. Before the police can stop a motor vehicle on the roadway they must have a “reasonable suspicion based upon articulable facts that a crime has been, is being, or is about to be committed”. The police were claiming that they had received a “tip” that a man who appeared to be drunk was entering a motor vehicle behind the bar and was headed out onto the street. When the police dispatcher first gave out the call he said that a bank teller had witnessed the drunk man getting into the motor vehicle; when the officers pulled DB over they radioed the dispatcher as to who had given out the tip. The dispatcher radioed back that it was a bank customer. This created a real doubt about whether a tip had actually been received. Attorney Lewin filed a Motion for a Copy of the 911 Tape; no recording (such as a 911 call) of the tip was ever found or produced. Attorney Lewin prepared and filed a Motion to Suppress all the evidence obtained by the police following the stop of DB’s vehicle. This included the identity of DB as the operator of the vehicle and all observations of his condition. On January 6, 2014 (some 14 months after his arrest) there was a full evidentiary hearing in Malden Court on the Motion to Suppress the evidence. The Judge hearing the Motion made the following findings and rulings: “The police had no reasonable suspicion to stop the Defendant’s motor vehicle; the so-called reporting party was never identified; no description of the operator of the vehicle was ever furnished; there was no evidence of any reasonable suspicion to stop the driver of the Defendant’s motor vehicle.” The Judge then granted the Motion to Suppress ALL the evidence the police obtained following the stop of DB on the street. In other words the Judge threw out all the evidence on the grounds that the stop of DB’s motor vehicle was illegal. The Middlesex County DA’s Office filed a Motion to Reconsider which the Judge denied. On March 21, 2014 the DA’s Office filed a “Nolle Prosequi”. A “Nolle Prosequi” is a termination of the prosecution of a criminal case by the Commonwealth. The “Nolle Prosequi” reads as follows: “The motion to suppress was allowed and all evidence was suppressed. As a result, the Commonwealth cannot proceed.” Two hours ago DB and Attorney Robert Lewin walked out of Malden Court. DB, with a big smile on his face, thanked Attorney Lewin and asked Attorney Lewin to send him a copy of the “Nolle Prosequi” so that he could frame it.