OUI Drugs Charge and Negligent Operation Charge Defeated At Clerk-Magistrate Hearing

On Wednesday, January 29, 2020 at about 2:30 in the afternoon, BW, a 27 year old Registered Nurse, was driving on the Mass. Turnpike on her way to Connecticut. The State Police received numerous calls from motorists on the Turnpike that her vehicle was weaving on the roadway. A State Trooper pulled in behind her vehicle and observed it go from the left hand lane into the median of the highway kicking up debris. The Trooper put on his emergency lights and BW pulled to the right and, after signalling with her right blinker, pulled across the highway and off to the right into the breakdown lane and stopped. The Trooper pulled in behind her and approached her vehicle. The Trooper made observations of BW and then had her exit her vehicle and perform certain roadside assessments which according to the Trooper she failed. The assessments included a one legged stand, a nine-step heel to toe walk, a balance test, and a horizontal gaze nystagmus test. According to the officer she failed all the tests. In BW’s open purse the officer observed a prescription bottle of gabapentin, a prescription medication for nerve pain. The officer charged BW with operating under the influence of drugs, specifically gabapentin. The officer also charged BW with Negligent Operation.

BW consulted with many lawyers. On February 16, 2020 BW had a two hour initial consultation with Attorney Robert Lewin from Andover. The OUI Drug statute in Massachusetts is a very detailed and specific statute. It defines in very specific terms the types of drugs that trigger the application of the law. Gabapentin, which is a depressant substance (it depresses electrical activity in the central nervous system and is used to treat seizures and nerve pain) at first glance would appear to be a drug that triggers the OUI Drug law. BW and Attorney Lewin discussed the law in detail. BW retained Attorney Lewin. For BW it was important that she win; if she were to be charged and/or convicted her Nursing License could be in jeopardy.

Attorney Lewin thoroughly researched the law and the science. The Massachusetts OUI Drug law makes it unlawful to operate a motor vehicle on a public way while under the influence of a narcotic drug or a stimulant or depressant substance as defined in the law.  The law sets out a very technical definition of depressant substance. Attorney Lewin thoroughly researched the science and the law and was able to establish that gabapentin – although it was a depressant substance – did not meet all the requirements of the law; specifically the law required that the substance be “designated by regulation of the U.S. Attorney General as having a potential for abuse”.  Attorney Lewin did a thorough research of the Federal Regulations and it turns out that the US Attorney General has NOT so designated gabapentin. Attorney Lewin informed BW of his findings and told her that she was going to win her case.

Attorney Lewin brought onto the Defense team one of the country’s leading experts in pharmacology (the study of drugs) to testify about gabapentin. The expert is a graduate of Harvard Medical School and a tenured Professor of Medicine at Tufts Medical School. (The expert and Attorney Lewin have known one another for 58 years and were classmates at Amherst College, both having graduated in the Class of 1966.)

Because of the covid-19 pandemic a virtual Clerk-Magistrate Hearing was held on August 13, 2020 via ZOOM at Worcester District Court. Attorney Lewin filed a lengthy Memorandum of Law with numerous exhibits explaining in very easy to understand terms why driving under the influence of gabapentin was not a crime. At 8:45 AM on August 13 the hearing proceeded. The State Police testified first. Then it was the Defense turn. Attorney Lewin had the Doctor testify. Attorney Lewin and the Doctor had prepared for the Doctor’s testimony in great detail. Every question had been written out ahead of time and had been discussed. There were not going to be any surprises. The doctor testified to the critical question that gabapentin was NOT a substance that the US Attorney General had by regulation designated as having a potential for abuse. Attorney Lewin also had BW testify.

Attorney Lewin then made a closing argument. When Attorney Lewin was finished the Clerk-Magistrate announced that he found NO probable cause to issue a criminal complaint for either of the two criminal charges that the police were seeking. When the hearing was over the Clerk-Magistrate thanked Attorney Lewin for the obvious preparation and hard work that Attorney Lewin had put into the case.

BW was thrilled. In an email she wrote the following to Attorney Lewin: “I would be more than happy to give you a stellar review. You held true to all of your previous reviews which I studied carefully before choosing an attorney. I can’t thank you enough for your hard work, diligence and care in my case.”

When the ZOOM hearing was all done and the computer was shut down Attorney Lewin jumped out of his chair, banged on the table, and gave a big cheer for another win in a hard case.

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