Operating After Suspension for DUI: Mandatory Sentence and Mandatory Loss of License Avoided

On April 27, 2017 TL, a 40 year old immigrant from Laos who is now a citizen, admitted to sufficient facts to an OUI first offense in Lowell District Court. The Judge continued the case without a finding and placed TL on probation for one year and suspended his license for 45 days. TL was eligible to get a hardship license but did not. On May 10, 2017, during the 45 day license suspension period, TL was driving to work when he got pulled over by the police in Ayer. The police arrested TL and charged him with operating after suspension of his license where the suspension was for an OUI case. A conviction under this law carries (1) a maximum sentence of 2 1/2 years and a mandatory minimum sentence of 60 days in the House of Correction and (2) an additional one year loss of license. TL was brought to Ayer District Court where he was arraigned and held and then transported to Lowell District Court where he was served with a notice of probation surrender and detention. In Lowell District Court, TL faced his continuance without a finding being revoked, a guilty finding being entered, and a sentence of up to 2 1/2 years being imposed along with a one year loss of license. Prospects looked very grim for TL. TL – in jail – asked his wife to find him a lawyer.

TL’s wife consulted with and retained Attorney Robert Lewin from North Andover. It was apparent to Attorney Lewin that none of TL’s problems would have arisen had he simply applied for the hardship license. Attorney Lewin went to the jail and met at length with TL. It appeared as if TL’s lawyer in the original case in Lowell had not advised TL about getting a hardship license so he could lawfully drive during the 45 day period.

Attorney Lewin went to Lowell District Court and met with TL’s Probation Officer. Attorney Lewin explained the situation to her and she responded very favorably to Attorney Lewin’s request to simply reprobate TL.On June 6, 2017 TL and Attorney Lewin appeared in Lowell District Court before Judge Fortes – a very tough District Court Judge. The probation officer came into the Courtroom and agreed with Attorney Lewin’s request that although TL violated probation that the Judge should simply put him back on probation (with the continuance without a finding still in place with no changes in the probation and no additional loss of license). The Judge adopted the request and the probation violation went away with no negative effects for TL.

The next day, June 7, 2017, TL and Attorney Lewin appeared in Ayer District Court. Attorney Lewin had prepared and sent to the District Attorney in Ayer a lengthy written memorandum requesting a favorable disposition of the operating after suspension case. This was a difficult matter as the law explicitly prohibits a judge from continuing this charge without a finding. The 60 day sentence is a mandatory minimum and the 1 year loss of license is mandatory upon a conviction. Attorney Lewin proposed to the DA that the case be continued generally for a year and then dismissed. This is not a prohibited continuance without a finding. The DA, after much discussion, agreed to this disposition with one concession – that TL be confined to his home for 30 days. TL, realizing that this would avoid the 60 days in jail and more importantly would avoid the 1 year loss of license, immediately accepted the proposal.

TL went from Ayer District Court to his home where he remained until July 6, 2017. He left his home that day and went to the Registry of Motor Vehicles and got his full drivers license reinstated.

In a phone conversation with TL’s wife shortly after July 6, 2017, TL’s wife said that she and TL were so appreciative that Attorney Lewin had fought so hard for TL to avoid the jail sentence and the 1 year loss of license. Her words to Attorney Lewin were that they could not have got those results without Attorney Lewin. As a lawyer it is wonderful to be able to take what appears to be a hopeless case and turn it into a win.

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