Operating Under the Influence

December 10, 2023

OUI Drugs Dismissed

On September 12, 2023, BY, a Registered Nurse, was driving to a nursing assignment. She was extremely tired and pulled to the side of the highway behind a State Trooper. The Trooper went back to her car to investigate. Several other motorists pulled over and told the trooper that BY had been all over the highway, at time going completely off the roadway and then lurching back on. The Trooper had her exit the car and had her perform several field sobriety tests. She did poorly on the tests almost falling over. The Trooper placed her under arrest for Negligent Operation.

There was no odor of alcohol coming from her and there was no evidence of alcohol in the vehicle. During an inventory search of the vehicle the Trooper found a bottle of Morphine, a bottle of Haloperidol, and a bottle of Lorazepam (all controlled substances) in BY’s vehicle.. The Morphine and the Haloperidol were in prescription bottles that bore the name of a deceased patient. The Lorazepam was in a prescription bottle that bore BY’s name. The Trooper then added the charges of Operating Under the Influencer of Drugs and Unlawful Possession of Drugs.

The police filed a Notice of Immediate Threat with the RMV. The RMV immediately suspended BY’s Driver License.

November 28, 2022

DUI: Know when to hold ’em; Know when to fold ’em

by Robert D. Lewin

Part of good lawyering is knowing when to advise a client not to go to trial. There are just some cases where the facts are terrible and the client has no hope of winning – and both the lawyer and the client know that after trial the client will get a stiff punishment. LS, a 60 year old accountant, had gone to a restaurant/bar for an evening out with friends. Prior to going to the restaurant LS had had several drinks and she brought a plastic bottle in her car with her filled with Vodka. At the restaurant LS had several more drinks. At closing time LS and four of her friends all got in LS’s car and she headed back to drop off the friends. She was driving on a road in Westford, failed to negotiate a turn in the road, struck a utility pole – cutting the pole in half – and then smashed head on into a stone wall. Two of the women in the car were injured and had to be taken to a hospital. The other two women had only minor injuries. LS was not injured. The police, ambulances, and fire trucks all responded to the scene. The police spoke with LS and immediately saw signs of intoxication. Field sobriety tests were administered and she did not do well. The police arrested LS and at the station she blew a .16, which is twice the legal limit. This was her first offense.

LS consulted with and hired Attorney Robert Lewin from Andover. Attorney Lewin fully investigated and fully prepared the case and reviewed all the police reports and witness statements with LS. Attorney Lewin explained to LS all her options in detail. She could fight the case and have a trial or she could work out a plea. The bare minimum penalty for a first offense OUI is a continuance without a finding for 1 year with a 45 day loss of license and completion of the first offender DUI program. That is the typical first offense disposition in a case with no accident and no injuries. When you add in an accident and injuries to two passengers the penalties typically go up. Instead of a continuance without a finding, the DA (and some Judges) sometimes want a guilty finding. Instead of a 45 day loss of license, the DA (and some Judges) want a longer loss of license. And in a case with bad injuries the DA and the Judges may want a suspended jail sentence or sometimes a committed jail sentence. Attorney Lewin explained all this to LS. Without hesitation, LS told Attorney Lewin that she wanted to work out a plea in the case. LS made it very clear to Attorney Lewin that she did not want to go to trial.

Attorney Lewin contacted LS’s insurance company to make certain that all the injuries to people (the two injured passengers) and damage to property (the utility pole and the stone wall) would be paid for by the insurance company. This helps in negotiations with the DA. Attorney Lewin then met with the Assistant DA and gave the DA background information about LS.

September 15, 2022

DUI Liquor – Newburyport District Court – NOT Guilty After Trial

by Robert D. Lewin

On September 22, 2021, EC, a 33 year old Registered Nurse, attended an evening concert at the Hampton Beach Casino. Over the span of about 4 hours she had two drinks. At about 1:30 AM on the morning of September 23, 2021, she left the concert, got into her car, and headed home to Cambridge. She was very low on gas and sought the nearest gas station on her GPS. The GPS directed her down Route 1 South to a gas station. When she arrived the station was closed. Her GPS then directed her to a gas station further down Route 1 South. She came to the intersection of Route 1 and Route 133 by the Agawam Diner in Rowley and her car ran out of gas. EC got on her cell phone and called AAA. While she was on the phone with AAA the Rowley Police arrived on scene. Everything thereafter was captured on the bodycam and dashcam videos. The police pushed EC’s car off the highway into the parking lot of the diner. The police could smell an odor of alcohol coming from EC and had her exit her car. A series of field sobriety tests were performed (all captured on the videos). The police arrested EC and she was transported to the station. In the station she was booked and the entire booking was captured on the video. On the morning of September 23, 2021, EC went to court, was arraigned, and her case was continued. EC contacted and retained Attorney Robert Lewin from Andover.

Attorney Lewin immediately obtained all the bodycam and dashcam and station videos. The videos were excellent and showed EC to stand straight and walk straight and talk perfectly. Attorney Lewin told EC that she should take her case to trial. While at the concert EC had bumped into a friend (who was also a nurse) and the two of them had spent the evening at the concert together. The friend would be a very good witness who could (and did) testify that EC was sober all evening and was sober when she left the concert. Attorney Lewin met (via zoom) with EC and her witness twice in the week leading up to the trial. EC and her witness were thoroughly prepared to testify and to answer any questions the DA may ask.

On April 26, 2022 EC, Attorney Lewin, and the witness appeared at Newburyport District Court for EC’s trial. Because the evidence of her innocence was so strong EC opted for a trial by Judge. The case proceeded to trial and the Judge found EC NOT guilty. As EC and Attorney Lewin were leaving the Newburyport District Courthouse, EC gave Attorney Lewin a big hug and thank you! It doesn’t get much better.

December 19, 2021

Operating Under the Influence Trial – NOT Guilty

by Robert D. Lewin

On the Friday after Thanksgiving 2020, SP, a 32 year old electrical engineer from Dorchester, and his girlfriend spent the day visiting with family and friends. The last stop was with family in Haverhill where they visited from about 7:00 pm to 11:00 pm. They left the house in Haverhill and headed back toward Boston. SP was driving and his girlfriend, who had had quite a bit to drink, quickly fell asleep. As SP was driving down I-93 South a State Police Officer was at the side of the road operating a lidar speed gun. SP was timed at 81 mph. The trooper began a pursuit and got behind SP and put on his blue lights. SP moved from the left lane across the middle lane to the right lane. According to the Trooper SP hesitated and finally pulled into the breakdown lane and stopped. According to the Trooper SP had traveled 1/2 mile after being signaled to stop before finally coming to a stop.

The Trooper then approached the passenger side of the vehicle and immediately observed an open 12 pack of White Claw alcoholic seltzer on the floor of the front passenger seat and he noticed an open 12 oz. can of Seltzer leaning against the center console on the passenger side. The passenger was sleeping but awoke when the trooper knocked his flashlight against the window and shined the light inside the car. SP put the passenger window down and the Trooper immediately noticed a strong odor of liquor coming form the car. According to the Trooper SP’s “eyes were glassy and red and he spoke with a thick tongue in a very slow demeanor as if he was heavily contemplating his response prior to answering any questions”. When the Trooper asked SP where they were coming from the Trooper wrote in his report that SP “looked at me with a blank stare on his face”. The Trooper asked SP to step from the vehicle and according to the Trooper SP stated “What if I don’t?” The Trooper then opened the car door and SP got out. According to the Trooper SP was unsteady and lethargic as he walked. The Trooper placed SP under arrest and placed him in the back of the police cruiser. Upon arrival at the State Police Barracks in Andover, SP was removed from the police car and brought up the flight of stairs to the rear entrance into the station. According to the Trooper as SP climbed the stairs he bounced “his left shoulder off the wall for balance near the top of the staircase”. SP was then booked, fingerprinted, refused the breath test, and was subsequently released. His girlfriend had also been brought to the barracks. She called her parents (in Mendon, MA!) who drove up to Andover to post the $40 bail and pick up their daughter and SP. They all left the station.

SP went to Lawrence District Court the following Monday where he was arraigned and his case was continued for a pre-trial hearing. SP sought out a lawyer. SP met with and retained Attorney Robert Lewin from Andover. Attorney Lewin immediately filed a Motion for copies of all recordings made by the police – all body cams, all dash cams, and all videos from the police station. There were no body cams and there were no dash cams. But there was a video from the booking room. The booking room video was an hour and eight minutes long. It was silent; no sound. It began when SP entered the booking room from the top of the stairs and it ends with SP leaving the booking room to exit the station. Attorney Lewin watched and studied the video. It was EXCELLENT. When SP stood and walked there was NO unsteadiness. He sat – in words that Attorney Lewin used during the trial – like a Sphinx. He did not fidget or sway or move. Attorney Lewin also interviewed SP’s girlfriend’s parents as they would be witnesses during the trial. Due to there not being any jury trials due to covid, the trial weas delayed, but finally took place on December 15, 2021 in Courtroom 5 in Lawrence District Court. In the week leading up to the trial Attorney Lewin had two trial prep sessions with SP and his girlfriend (via zoom) and one trial prep session with SP’s girlfriend’s parents. Attorney Lewin practiced with all of them and advised them of the types of questions they would be asked by the DA. This avoids any surprises.

December 4, 2018

OPERATING UNDER THE INFLUENCE 2nd OFFENSE – NOT GUILTY

by Robert D. Lewin

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.

November 15, 2018

OUI LIQUOR CHARGE DISMISSED IN LYNN DISTRICT COURT

by Robert D. Lewin

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.