OPERATING UNDER THE INFLUENCE 2nd OFFENSE – NOT GUILTY

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.

DE, a Plastering Contractor with a big business, was ecstatic and gave Attorney Lewin a big bear hug. Attorney Lewin brought to bear his five years of experience in the District Attorney’s Office and his 43 years of experience as a criminal defense attorney to take what appeared to be a hopeless case and turn it into a win. Needless to say DE left the Peabody District Court a very happy man!