On December 19, 2020 SK, a 31 year old mechanic and tow truck driver, drove to his girl-friend’s house in Essex, MA after finishing a 27 hour work shift in a snowstorm. When he arrived he saw that the driveway had not been plowed and there was a large “wall” of snow at the edge of the road blocking the driveway. He pulled his van across the road across the edge of the driveway (facing into oncoming traffic). He called a friend who was a plow operator to come plow the driveway. He then fell asleep with the van running. A police car on patrol happened along. The police stopped and went over to the Defendant’s van. The officer knocked on the window. SK did not wake up. The officer then banged on the door and SK still did not awake. The officer then shook the van and pounded on the door and SK finally awoke. According to the officer the van was in drive and started to pull forward. The officer was able to get the van to stop. According to the officer SK appeared under the influence of something. The officer did not smell any odor of alcohol. SK told the officer he was just waiting for the plow guy to plow the driveway. At this point SK’s “girlfriend” came out of the house and told the police she did not want SK in the house and that he was a Xanax user. The police ordered SK out of the van and had him perform certain tests. The officer described SK as disoriented with slurred speech and glassy eyes. The officer wrote in his report that SK failed the road side tests. The police arrested SK and charged him with OUI-Drugs. SK went to court and was appointed a lawyer. For 11 months the case languished in Court. Finally, in October of 2021, SK consulted with and retained Attorney Robert Lewin of Andover.
Attorney Lewin immediately went to work and obtained from the police the videos (the previous lawyer had not obtained the videos). There were no body worn camera videos but there was a dashcam video. That dashcam video was about 30 minutes long. For 29 minutes and 40 seconds it just was a fixed picture of the snow falling. The police could be seen walking about. SK could not be seen. In the final 20 seconds of the video, SK can be seen walking handcuffed to the side of a cruiser door and then getting into the cruiser. SK was perfect. He walked briskly. He stood straight. He walked straight. No weaving. No stumbling. No unsteadiness. He enters the cruiser (handcuffed behind his back) unaided and with no difficulty. That 20 seconds of video was a goldmine.
No blood tests had been taken of SK and he made no statements concerning the consumption of any drugs. No drugs were found on his person or in the van. In an OUI-Drugs case the Commonwealth must prove the particular drug that the Defendant had consumed. Attorney Lewin filed a Motion to compel the Commonwealth to specify the alleged drug. The Commonwealth, relying on the “girlfriend’s” statement alleged that SK was under the influence of Xanax.
It turns out that the “girlfriend” had issues of her own. She was subsequently arrested for drug trafficking. Attorney Lewin contacted her lawyer and it became apparent that if the girlfriend was called by the state as a witness in SK’s case that she would exercise her Fifth Amendment privilege and refuse to testify. Attorney Lewin could see that it was becoming impossible for the state to prove that SK was under the influence of Xanax or any other specific drug. Attorney Lewin pushed for a trial date. Finally the case was set down for trial on Monday, May, 2 2022. On Friday, April 29, 2022 Attorney Lewin was in his office and the phone rang. It was the DA’s Office calling. They wanted to know if SK wanted to plead guilty. Attorney Lewin said absolutely not. The DA then said that they were going to dismiss the case. On Monday, May 2, 2022, SK and Attorney Lewin appeared in Peabody District Court (cases from the town Essex go to Gloucester District Court and if the case is going to be a jury trial the case is then transferred to Peabody District Court for jury trial). The case was called and Attorney Lewin answered that the defense was ready for trial. The DA then filed a “nolle prosequi”. A “nolle prosequi” is a termination of the prosecution of a criminal charge by the Commonwealth. It ends the case. It was the end of a long road for SK and he and his family were thrilled with the result that Attorney Lewin had achieved for them.
This case points out the importance of pre-trial preparation, of touching all the necessary bases. SK’s case was fully prepared. All the necessary discovery was obtained (in particular, the video evidence). All the witnesses were fully prepared to testify had the case gone to trial on May 2. The “girlfriend” was fully prepared to exercise her fifth Amendment privilege. SK was fully prepared to testify in is own defense. The preparation paid off.