Articles Posted in DWI/OUI

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 As a result of refusing the breath test his license was revoked for three years.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.

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.

On December 3, 2009 MS, then 20 years old, was convicted of Assault & Battery with a Dangerous Weapon and Armed Home Invasion in Salem (MA) Superior Court. On the A&B D/W charge she was given a 2 1/2 year sentence to the House of Correction: 18 months to be served and the balance (1 year) suspended to August 2013. On the Home Invasion charge, which carries a 10 year mandatory minimum sentence to State Prison, she was given probation to August 2013. She served 9 months of the 18 month sentence and was paroled.

On April 22, 2013 MS – 4 months prior to the date her probation is to end – MS got arrested for a DUI in Haverhill. She blew a high breathalyzer. One of the conditions of her probation was that she was to remain alcohol free. She was clearly in violation of probation. MS was very frightened that her probation in the Superior Court would be revoked and that the Judge would sentence her to finish the one year suspended sentence that was still hanging over her head – not to mention the 10 year State Prison sentence that was hanging over her head.

MS was also concerned about the DUI case; her concern was that the Judge in Haverhill District Court would see that she was on probation for a very serious crime and that the Judge in Haverhill would give her a harsh sentence.

On June 24, 2012 RM was driving home from a tavern in Lowell. He was on Thorndike Street and in front of him he noticed a State Police Road Block. RM entered the road block. The “greeter officer” noticed an odor of alcohol and asked RM if he had been drinking. RM responded yes and the “greeter officer” directed RM into the large parking lot the State Police were using to conduct the investigations. RM pulled in and was directed to a spot. He was asked to produce his license and registration. According to the Trooper RM just sat in the seat and did not respond. The Trooper asked again and this time RM got his license and registration and gave them to the officer. The Trooper asked RM to exit the vehicle which RM did. Two field sobriety tests were administered. The one legged stand and the 9 step heel to toe walk. (The HGN Test – horizontal gaze nystagmus test – was also administered but was not allowed into evidence at the trial. A portable breath test was administered in the field but this also was not allowed into evidence at the trial.) According to the police report RM failed the field sobriety tests and RM was arrested and charged with operating under the influence of liquor. RM was brought to the Concord Barracks where he elected to take a breathalyzer test. He blew a .07 which is in the gray area. RM retained Attorney Robert Lewin. At the pre-trial hearing Attorney Lewin got the DA’s Office to stipulate to the .07 and to stipulate that it would be admissible without the necessity of bringing in the breath test operator. On October 25, 2012 the case went to trial. On the advice of Attorney Lewin a jury was waived and the case was tried to the judge without a jury. The greeter officer and the arresting officer testified. RM and his wife testified. His wife testified that she was at home in bed when the phone rang at 2:45 AM. It was RM calling from the State Police Barracks. She testified that he was coherent and his speech was perfectly normal. She testified that she detected no signs of intoxication either in what he said or the way he said it. She also testified that he gave her specific driving directions on how to get from their home in Lowell to the State Police Barracks in Concord – a mighty task for someone who is allegedly under the influence. She was on the witness stand for about three minutes but her testimony was very helpful. RM testified. RM did a great job. His testimony was clear and concise; he was polite yet confident. The DA could not shake him on cross-examination (for which Attorney Lewin had thoroughly prepared him). At the close of his testimony both sides rested. Attorney Lewin made his closing and the DA made her closing argument. The Judge then said “I have considered all the testimony, I have taken into account the law and the burden of proof, and I find the Defendant not guilty.” RM is a truck driver and it was important for him to win. Several observations about the case: (1) The facts were good, especially the .07 breath test result; (2) RM and his wife were very well prepared. In meetings with Attorney Lewin both RM and his wife were put through a “mock” trial. They were put through both direct and cross examination. When they got on the witness stand in court they were ready; there were no surprises; and (3) The decision to try the case to the Judge alone without a jury was the right choice. Juries in Middlesex County can be difficult in DUI cases. Some months ago there was a series of stories in the Boston Globe about certain Judges who almost always say not guilty in DUI cases. Since that series in the Globe many Judges have been less ready to say not guilty in these cases. Nevertheless most Judges will still say not guilty if the evidence is not convincing beyond a reasonable doubt. This was one of those cases where Attorney Lewin felt the judge would say not guilty and the client agreed.

On April 25, 2012 JC was driving from his home in Lowell to his place of work in Burlington. JC is 57 years old and is employed as a finish carpenter. Between 1980 and 1997 JC had a tremendous problem with alcohol and was convicted no less than 9 TIMES for DWI. He spent most of the 1990s in jail. When he wasn’t in jail he was out drinking and driving. He got out of jail in 1999 and has not had a drink since. His license was revoked for ten years by the Registry. As of the date of his last DWI Melanie’s law was not yet in effect and the maximum loss of license was ten years – no matter how many prior DWI cases a person had. In 2001 JC was convicted of operating after suspension and served some additional time. In 2009 he tried to get a license from the registry but they turned him down; he went to the Board of Appeal and they turned him down; he went to Superior Court and they turned him down; and he then went to the Massachusetts Appeals Court and they turned him down. Getting back to April 25, 2012. JC’s son had an outstanding warrant. JC’s son’ name is also JC. A Burlington police officer was randomly checking license plates as JC drove by and the warrant to the son showed up. The officer pulled JC over and discovered that his license was still suspended. JC was honest with the officer and the officer did not arrest him but rather issued him a citation. JC contacted Lewin & Lewin. Attorney Robert Lewin instructed JC to immediately request a Clerk-Magistrate’s Hearing. JC did request a hearing and a hearing date was scheduled for October 1, 2012 at Woburn District Court. Under the theory that the worst they can say is no, Attorney Lewin approached the Burlington Police Prosecutor and pointed out that JC had been out of trouble for many years and that he was simply driving to work. Attorney Lewin asked if the police would be willing to settle the case in the Clerk’s Office – WITHOUT a complaint issuing against JC. The police agreed. On October 1, 2012 JC, Attorney Robert Lewin, and the Burlington Police appeared before the Clerk-Magistrate at Woburn District Court for the hearing. At the request of Attorney Lewin with the agreement of the Burlington PD the Clerk-Magistrate did not issue a criminal complaint against JC. The Clerk ordered that the papers would be held for six months and if JC stayed out of trouble then the application for the criminal complaint for operating after suspension will be dismissed. What a break! If the complaint had been issued against JC there is no question that he would have been heading back to jail. The lesson in this case is that it pays to ask. Shoot for the moon; the worst the other side can say is no and sometimes – as in this case – they say yes. This is the type of common sense lawyering that comes from the 41 years of experience that Attorney Robert Lewin brings to the table.

On June 9, 2012 FE and a friend drove to Hampton Beach, NH and spent the evening at a club. FE was age 20. When they left the club in the early morning hours of June 10, 2012 the friend was too drunk to drive and asked FE to drive the friend’s pick up truck. FE agreed and drove and headed down Rt 495S toward Lowell. FE was tired and pulled into the rest area on the southbound side of Rt. 495 in Merrimac, MA. There was a thirty pack of Coors Light on the rear floor. There was an open 12oz. Keystone Beer in a rear door pocket. There was also a 12 oz. Coors Light can (open) on the rear floor behind the center console. There was a cooler with ice in the back. After pulling into the rest area and parking laterally across three parking spaces, FE put the truck in park and both FE and his friend fell asleep with the engine running. The State Police entered the rest area and observed the truck.After waiting about ten minutes the Trooper approached the pick up to do a “wellness check” on the occupants. He banged on the doors and windows and got no response from the sleeping occupants. The Trooper then opened the drive’s door and FE, who was sleeping, started to fall out of the truck but was caught by the Trooper. FE awoke at that point.The truck wreaked of beer as did both occupants. The Trooper got FE out of the truck and administered Field Sobriety Tests. FE did well on the nine step heel to toe walk, he did poorly on the one legged stand, he did fair on the counting backwards test. He failed the horizontal gauze nystagmus test (HGNT). He was then arrested. He was brought to the Newbury State Police Barracks where a breathalyzer test was administered. The result was a .079! This gets rounded down to a .07 which is in the gray area in Massachusetts. On October 2, 2012 the case went to trial in Newburyport District Court. Attorney Robert Lewin represented FE. Attorney Lewin recommended to FE that the case be tried jury-waived (to a judge alone without a jury). The case was tried to a judge alone. The Judge excluded the results of the HGNT. The trial took about 20 minutes and the Judge returned a finding of NOT guilty. Because he was under 21, FE still loses his license for 180 days because his breath test result was over .02.

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