HIT AND RUN CHARGE AVOIDED

On July 19, 2018, KL, a 28 year old male data analyst went out with his girlfriend to a restaurant/bar in Newburyport. They ate and had several drinks and then at about 10:30 PM they left the bar and got into KL’s car which was parked in the parking lot. As KL backed up, the rear end of his car came into contact with the rear bumper of another vehicle that was parked in the parking lot. According to the police report there was “minor damage” to the passenger side rear bumper of the parked vehicle. KL got out of his vehicle and walked over to the parked vehicle. There were several witnesses in the parking lot to the entire event. KL then got back into his vehicle and drove away. The police were called and responded. The witnesses told the police what had happened and furnished the registration plate number of KL’s vehicle to the police. From the plate number the police were able to ascertain the owner of the offending vehicle (KL). The police then went into the restaurant/bar and showed the bartender a photo of KL (which the police had obtained on their portable data terminal from the Registry of Motor Vehicles). The bartender immediately identified the picture of KL as a customer who had been in the bar with a woman. The bartender was able to get the credit card charge slip that KL had signed and it bore KL’s name.

The police attempted to speak with KL but were not successful. The police issued a citation for Leaving the Scene of a Property Damage collision. KL consulted with and retained Attorney Robert Lewin from North Andover. Attorney Lewin instructed KL to immediately request a hearing before a Clerk-Magistrate at the Newburyport District Court which KL did. Attorney Lewin was able to obtain a copy of the Police Narrative Report. Attorney Lewin reached out to the police prosecutor to see if a resolution of the case could be reached at the Clerk-Magistrate hearing. On September 7, 2018 KL and Attorney Lewin appeared at the Newburyport District Court for the Clerk-Magistrate hearing. The owner of the struck vehicle was not present. The purpose of a Clerk-Magistrate hearing is for the Clerk to decide whether there is probable cause to issue the complaint. If the Clerk-Magistrate finds no probable cause then no complaint will be issued. If the Clerk-Magistrate finds probable cause then the Clerk-Magistrate may issue the complaint; or the Clerk-Magistrate may, in his or her discretion, continue the hearing for a period of time and at the end of that period of time if there are no reports of any further trouble with the law then the Clerk-Magistrate will dismiss the application for the criminal complaint and not issue the complaint.

At the hearing on September 7, 2018 the notion of an Accord & Satisfaction was discussed. There is a statute in Massachusetts that provides as follows:

  • when a person is charged with a misdemeanor “for which he is liable in a civil action” [that is the case here because Leaving the Scene Property Damage is a misdemeanor and KL would be liable to the owner of the other vehicle in a civil case for the damage done to the other vehicle]; and
  • when the victim appears before the Court and “acknowledges in writing that he has received satisfaction for the” damage
  • then the court can dismiss the misdemeanor.

This statute is Chapter 276, Section 55 of the Massachusetts General Laws and is commonly referred to as the Accord & Satisfaction Law.

At the hearing on September 7, 2018 Attorney Lewin offered to reach out to the man whose vehicle was struck to see if he would be willing to enter into an Accord & Satisfaction. The Clerk-Magistrate, with the agreement of the police prosecutor, then continued the hearing to October 5, 2018. Both Attorney Lewin and the police prosecutor reached out to the victim. The victim was made aware of the new hearing date and was given the opportunity to appear. The victim told the police prosecutor that he wanted to proceed with the prosecution of the case but the victim was either unable or failed to furnish to either Attorney Lewin or the police prosecutor any evidence that his car was damaged. No photos and no estimates to repair the vehicle were ever produced.

Attorney Lewin kept in contact with the police prosecutor to see if the victim had produced any evidence of damage to his vehicle. On October 5, 2018 KL and Attorney Lewin and the police prosecutor appeared again at Court before the Clerk-Magistrate. No evidence was presented as to any damage to the vehicle. The victim did not appear. By agreement reached between the police prosecutor and Attorney Lewin it was proposed to the Clerk-Magistrate that a criminal complaint not be issued against KL but rather that the hearing be continued for six months. If there are no reports of any law violations by KL during that six month period then at the end of the six months the application for the criminal complaint would be dismissed. (On the other hand, if KL does commit a law violation during the six month period, then the criminal complaint for Leaving the Scene would be issued against KL.) The Clerk-Magistrate after speaking with Attorney Lewin and the police prosecutor and after a careful consideration of the entire case agreed with the proposal and declined to issue the criminal complaint. The Clerk-Magistrate continued the hearing for six months and told KL that as long as he stayed out of trouble he would not have to return to Court and the case would be dismissed. The Clerk-Magistrate also cautioned KL that if he did get into any new trouble with the law then a complaint for Leaving the Scene would be issued against him.

As a result of this disposition of the case the following should be noted:

  • KL was NOT arrested.
  • KL was NOT charged with any criminal offense.
  • NO criminal complaint was issued against KL
  • This proceeding will NOT appear on KL’s criminal record; KL has NO criminal record.
  • KL will NOT lose his license. [Leaving the Scene of a Property Damage Accident carries a 60 day loss of license.]

Although it took two court appearances KL got the result he was looking for and left the Court very pleased.