Negligent Operation

December 10, 2023

Juvenile Negligent Operation Charge Diverted

LS, a 17 year old high school student, took one of his family cars and decided to do a time trial on an Andover Street. He had three other kids in the car with him. Going around a corner at a high speed he lost control and crashed into a stone wall. Fortunately for LS no one was hurt and the other three kids in the car took off. A neighbor called the police and the Andover Police arrived shortly thereafter. LS was cited by the police for speeding and negligent operation. LS and his parents met with and retained Attorney Robert Lewin from Andover. Attorney Lewin immediately told LS to file the citation at the Clerk-Magistrate’s at Lawrence Juvenile Court. The filing of the citation at the court preserved LS’s right to a Clerk-Magistrate Heating BEFORE a juvenile complaint was issued against him.

Negligent Operation is what is called a Chapter 90 Offense; Chapter 90 is the Massachusetts Motor Vehicle law. Juvenile’s, with no prior court involvement, are typically eligible for consideration into the Juvenile Diversion program. The Juvenile Diversion Program causes a criminal (juvenile) charge to be “diverted” out of the criminal justice system. As a matter of practice, however, Chapter 90 Offenses (such as Negligent Operation in this case) will not be diverted.

After being hired, Attorney Lewin went over to the Juvenile Court in Lawrence to review the court papers and get a copy of the police report. The Clerk-Magistrate informed Attorney Lewin that the police had not yet filed their paperwork at the Court. There is a little known rule called the “6-Day Rule”. The Motor Vehicle Law contains a provision that the police must file their paperwork at the court within 6 business days of the violation. When Attorney Lewin saw that the police had not filed their paperwork (on the fourth business day), Attorney Lewin called LS and his parents and told them we are doing to go silent and wait and see if the police file within the 6 business days. And wait they did. Finally on the 15th business day after the violation the police filed their paperwork at the Court. Attorney Lewin immediately filed a Motion to Dismiss the case for violation of the 6 day rule.

September 22, 2020

Road Rage Charge Avoided

by Robert D. Lewin

On February 27, 2020 NH, a 34 year old maintenance technician, was working on a job site in North Andover. He got a call to report back in to the company headquarters in Haverhill. He got in his company van and headed up Route 125N to Industrial Way. As he proceeded up Industrial Way toward the entrance ramp to I-495 North he observed a black jeep behind him to his left. The road ahead was narrowed by cones from two lanes to one lane. The Jeep passed him on the left and then had to cut back sharply in front of NH to avoid striking the cones. NH had to slam on his brakes to avoid colliding with the Jeep which had pulled directly in front of NH. The Jeep then proceeded ahead and as the Jeep approached the split where the ramp to I-495N bears to the right it appeared as if the Jeep was going to proceed straight on Industrial Way. Suddenly and without signaling the Jeep pulled to the right onto the I-495 ramp again cutting in front of NH. Once again NH had to slam on his brakes to avoid striking the Jeep. The Jeep continued down the ramp onto I-495N travelling at about 20 mph. Once on I-495 NH then pulled to the left, passed the Jeep, and then after signaling pulled back to the right and exited I-495 at exit 50 to head to his company headquarters. Several hours later NH got a call from the State Police. The police asked NH if he had been involved in an incident with another vehicle. NH described to the State Trooper exactly what had happened with the Jeep. Some time later NH received a citation in the mail for Operating to Endanger the Lives and Safety of the Public. This is a criminal offense that carries up to 2 years in jail plus a mandatory loss of license.

The driver of the Jeep called the State Police and then went to the State Police Barracks and filed a report. She claimed that after she passed by NH on Industrial Way and pulled in front of him that NH was tailgating her dangerously as they proceeded down the ramp onto I-495N. She then claimed that NH “whipped around [her] on the second lane, pulled next to [her], and then moved into [her] lane in an obvious attempt to ram [her] into the cement barrier.” The police viewed this as a road rage incident.

NH was smart. He immediately took the citation and brought it to Haverhill District Court to request a Clerk-Magistrate Hearing. NH then contacted and retained Attorney Robert Lewin of Andover. Attorney Lewin immediately obtained a copy of the police report and sat down with NH and reviewed the report in detail. Attorney Lewin found NH to be a very credible witness. Subsequently, the case was set down for a Clerk-Magistrate Hearing on September 22, 2020. Normally, most criminal lawyers will not have their clients testify at a Clerk-Magistrate hearing. The reason for this is that in the event the Clerk-Magistrate issues a criminal complaint and the case subsequently goes to trial the Defense wants to have a clean slate – that is, the Defense does not want the government to have the benefit of the accused’s (recorded) testimony from the Clerk-Magistrate Hearing. In NH’s case, however, NH had already given a complete written statement to the State Police. It was a very detailed statement. As a result there was no downside to having NH testify at the hearing.

August 15, 2020

OUI Drugs Charge and Negligent Operation Charge Defeated At Clerk-Magistrate Hearing

by Robert D. Lewin

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.

April 5, 2020

Reckless/Negligent Operation Charge Avoided at Clerk-Magistrate Hearing

by Robert D. Lewin

On July 24, 2019 SB, a 74 year old retired administrator from North Andover, was driving from Peabody Center westerly on Route 114 toward Danvers. As he traveled westerly he approached the section of Rt. 114 where the North Shore Mall is on the left and Kappy’s Liquors is on the right. He was in the third lane from the right. According to SB he applied his brakes and the car did not slow. He then turned his steering wheel to the right to pull into the parking lot of Kappy’s. There was a motocycle in the lane immediately to SB’s right. When SB made that sudden turn he collided with the motor cycle. The cyclist was thrown off the motorcycle and was severely injured. He had a fractured leg and a possible head injury. SB continued into the parking lot of Kappy’s and the police were called by another motorist. SB waited at the side of Rt. 114 and the police arrived shortly thereafter. Three witnesses at the scene all told the police that “the motorcyclist was travelling straight ahead, and the other vehicle involved turned in front of him resulting in the crash”. The motorcyclist told the police that he was travelling straight ahead when SB’s vehicle suddenly turned directly in front of him causing the crash. The police cited SB for reckless operation.

SB spoke to at least 4 criminal lawyers. SB met with Attorney Robert Lewin from Andover. They had an initial free consultation that lasted 2 hours. Attorney Lewin explained to SB that reckless operation carried a potential jail sentence of 2 years and a mandatory loss of license. Attorney Lewin downloaded SB’s driver history from the Registry of Motor Vehicles and it was terrible. SB had a prior conviction for Reckless Operation, 4 surchargeable at fault accidents, and 12 other moving violations. Attorney Lewin could sense immediately that SB was going to be a difficult client. SB thought he had all the answers and he thought he knew exactly how the defense should proceed. He was dead wrong and Attorney Lewin told him so. SB retained Attorney Lewin.

Attorney Lewin explained to SB why it was so important to try to kill the case at a Clerk-Magistrate Hearing. SB brought the citation to the Peabody District Court and requested a Clerk-Magistrate Hearing. Attorney Lewin then went over to Peabody District Court and obtained copies of all the police reports. More importantly, Attorney Lewin met with the Police Prosecutor from the Peabody Police Department. The purpose of the meeting was to advocate on SB’s behalf to get the case resolved at the Clerk-Magistrate hearing without a criminal complaint being issued against SB – a very tall order given the facts of the case, SB’s driver record, and the severe injuries sustained.

November 20, 2018

Hit & Run and Negligent Operation Charges Dismissed

by Robert D. Lewin

On April 22, 2018 RB, a 24 year old sales associate from Wilmington was driving his car on North Street in Tewksbury. He was making the turn from North Street onto Livingston Street when he lost control of the car. He struck and demolished a stone wall and a mailbox. He then left the scene and drove about 400 feet from the scene of the accident where his car could go no further. The whole accident was captured on a security video. The police responded and found RB. At first he told the police that his car had been struck by a hit and run driver but then he admitted that he had struck the wall and the fence.

The police cited RB for Leaving the Scene of a Property Damage Accident, Negligent Operation, Speeding, and Marked Lane violation. RB and his father, several days later, returned to the scene of the accident and went and spoke to the owner of the property where the wall and mailbox had been situated. RB’s father hired a contractor to come in and rebuild the wall and rebuild and replace the mailbox. The work was done within a matter of days.

The owner of the property – luckily for RB – was a very understanding man. He wrote a letter stating that everything had been repaired and that RB had apologized to him and that he sought nothing further from RB.