OUI Drug Charge and Possession With Intent To Distribute Charge Dismissed

On May 3, 2016 ZA, a 25 year old grocery clerk from Lynn, ingested a substantial quantity of drugs. He got in his car and was driving through Topsfield. The police found ZA in his vehicle. He appeared to be unconscious. The car was running; his foot was on the brake; his arms were on the steering wheel; and his body slumped over the wheel. The police noticed drool coming from his mouth. The police turned the car off and got ZA up and out of the car. During a search of ZA and the vehicle the police found the following:

  • ¬†Soft case containing $135.00 in rolled up money.
  • Envelope containing $400.
  • Soft case with 1 blue amphetamine pill.
  • Bottle with 3 amphetamine capsules.
  • Plastic Bottle with rubbing alcohol.
  • Bottle with 52 unmarked capsules.
  • 27 Vivarin Pills (Caffeine, not an illegal drug)
  • Bottle with 1 tablet and 1 capsule, both amphetamine.
  • Some weed.
  • Cotton Balls, 10 Q-Tips, plastic spreader with a burnt end.
  • In various places in the car the police found 2 rolled up $20 bills, 2 $1 bills, 5 $1 bills, 2 rolled up $1 bills containing a white powder.

In the trunk the police found the following:

  • 37 orange oval shaped amphetamine pills
  • 18 orange shaped amphetamine pills
  • 51 peach colored amphetamine pills
  • 12 orange amphetamine capsules
  • 1 blue amphetamine capsule.
  • 9 oval amphetamine pills

The police arrested ZA and charged him with the following offenses:

  1. Possession of Class B
  2. Possession of Class B with Intent to Distribute
  3. Operating Under the Influence of Drugs

When questioned by the police ZA told the police that he had ingested Butanediol. This is an industrial solvent that is NOT a controlled substance under Massachusetts Law. ZA was brought by the police to a local hospital where he was initially diagnosed with an opiate overdose and given narcan; however, the blood work done at the hospital did not show opiates and the final discharge diagnosis was “accidentally taking too much of a medicine or swallowing a chemical product”.

ZA went to Ipswich District Court (in Newburyport) and was arraigned. Ipswich/Newburyport District Court is one of the toughest District Courts in the entire state.He was given a date to return to court. ZA met with several lawyers and then met with Attorney Robert Lewin in North Andover. Attorney Lewin took a very close and detailed look at all the facts in the case. Attorney Lewin explained the law in great detail to ZA. The operating under the influence of drugs law is very specific and requires the state to prove that ZA was under the influence of a one of several specified controlled substances. Butanediol is NOT of the enumerated substances. The hospital report (although the initial diagnosis was “opiate” overdose) contained no proof of an opiate overdose. ZA retained Attorney Lewin. ZA and Attorney Lewin worked closely together to make certain that all the facts were put in proper context. Attorney Lewin then went to the Assistant District Attorney in Newburyport – whom Attorney Lewin knows well. Attorney Lewin sent the Assistant District Attorney a lengthy memo as to why ZA was not guilty of operating under the influence of drugs. In addition Attorney Lewin was able to convince the Assistant District Attorney that even though there was a substantial number of amphetamine pills in the vehicle the evidence did not establish that he was selling or distributing the pills or holding them for distribution.

On August 31, 2016 ZA and Attorney Lewin appeared in Ipswich District Court (in Newburyport). ZA plead to the charge of simple possession of class B (the amphetamine pills). The charge was continued without a finding for 18 months. The charges of possession with intent to distribute (a felony) and operating under the influence of drugs were both dismissed. This was the result that ZA had wanted from the beginning and it was the result that he had hired Attorney Lewin to get. ZA left the Courthouse satisfied that Attorney Lewin had done the job he was hired to do.

(This case is a good example of two important considerations in a criminal case: (1) The client and the Attorney being able to set realistic goals and being able to work closely together to achieve those goals and (2) having an Attorney who can take the client’s case to the District Attorney and argue convincingly of the correctness of the client’s position.)

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