Articles Posted in DWI/OUI Drugs

On December 19, 2020 SK,  a 31 year old mechanic and tow truck driver, drove to his girl-friend’s house in Essex, MA after finishing a 27 hour work shift in a snowstorm. When he arrived he saw that the driveway had not been plowed and there was a large “wall” of snow at the edge of the road blocking the driveway. He pulled his van across the road across the edge of the driveway (facing into oncoming traffic). He called a friend who was a plow operator to come plow the driveway. He then fell asleep with the van running. A police car on patrol happened along. The police stopped and went over to the Defendant’s van. The officer knocked on the window. SK did not wake up. The officer then banged on the door and SK still did not awake. The officer then shook the van and pounded on the door and SK finally awoke. According to the officer the van was in drive and started to pull forward. The officer was able to get the van to stop. According to the officer SK appeared under the influence of something. The officer did not smell any odor of alcohol. SK told the officer he was just waiting for the plow guy to plow the driveway. At this point SK’s “girlfriend” came out of the house and told the police she did not want SK in the house and that he was a Xanax user. The police ordered SK out of the van and had him perform certain tests. The officer described SK as disoriented with slurred speech and glassy eyes. The officer wrote in his report that SK failed the road side tests. The police arrested SK and charged him with OUI-Drugs. SK went to court and was appointed a lawyer. For 11 months the case languished in Court. Finally, in October of 2021, SK consulted with and retained Attorney Robert Lewin of Andover.

Attorney Lewin immediately went to work and obtained from the police the videos (the previous lawyer had not obtained the videos). There were no body worn camera videos but there was a dashcam video. That dashcam video was about 30 minutes long. For 29 minutes and 40 seconds it just was a fixed picture of the snow falling. The police could be seen walking about. SK could not be seen. In the final 20 seconds of the video, SK can be seen walking handcuffed to the side of a cruiser door and then getting into the cruiser. SK was perfect. He walked briskly. He stood straight. He walked straight. No weaving. No stumbling. No unsteadiness. He enters the cruiser (handcuffed behind his back) unaided and with no difficulty. That 20 seconds of video was a goldmine.

No blood tests had been taken of SK and he made no statements concerning the consumption of any drugs. No drugs were found on his person or in the van. In an OUI-Drugs case the Commonwealth must prove the particular drug that the Defendant had consumed. Attorney Lewin filed a Motion to compel the Commonwealth to specify the alleged drug. The Commonwealth, relying on the “girlfriend’s” statement alleged that SK was under the influence of Xanax.

On Wednesday, January 29, 2020 at about 2:30 in the afternoon, BW, a 27 year old Registered Nurse, was driving on the Mass. Turnpike on her way to Connecticut. The State Police received numerous calls from motorists on the Turnpike that her vehicle was weaving on the roadway. A State Trooper pulled in behind her vehicle and observed it go from the left hand lane into the median of the highway kicking up debris. The Trooper put on his emergency lights and BW pulled to the right and, after signalling with her right blinker, pulled across the highway and off to the right into the breakdown lane and stopped. The Trooper pulled in behind her and approached her vehicle. The Trooper made observations of BW and then had her exit her vehicle and perform certain roadside assessments which according to the Trooper she failed. The assessments included a one legged stand, a nine-step heel to toe walk, a balance test, and a horizontal gaze nystagmus test. According to the officer she failed all the tests. In BW’s open purse the officer observed a prescription bottle of gabapentin, a prescription medication for nerve pain. The officer charged BW with operating under the influence of drugs, specifically gabapentin. The officer also charged BW with Negligent Operation.

BW consulted with many lawyers. On February 16, 2020 BW had a two hour initial consultation with Attorney Robert Lewin from Andover. The OUI Drug statute in Massachusetts is a very detailed and specific statute. It defines in very specific terms the types of drugs that trigger the application of the law. Gabapentin, which is a depressant substance (it depresses electrical activity in the central nervous system and is used to treat seizures and nerve pain) at first glance would appear to be a drug that triggers the OUI Drug law. BW and Attorney Lewin discussed the law in detail. BW retained Attorney Lewin. For BW it was important that she win; if she were to be charged and/or convicted her Nursing License could be in jeopardy.

Attorney Lewin thoroughly researched the law and the science. The Massachusetts OUI Drug law makes it unlawful to operate a motor vehicle on a public way while under the influence of a narcotic drug or a stimulant or depressant substance as defined in the law.  The law sets out a very technical definition of depressant substance. Attorney Lewin thoroughly researched the science and the law and was able to establish that gabapentin – although it was a depressant substance – did not meet all the requirements of the law; specifically the law required that the substance be “designated by regulation of the U.S. Attorney General as having a potential for abuse”.  Attorney Lewin did a thorough research of the Federal Regulations and it turns out that the US Attorney General has NOT so designated gabapentin. Attorney Lewin informed BW of his findings and told her that she was going to win her case.

Contact Information