Massachusetts Criminal Lawyer BlogAK, a 22 year old woman, was driving home from a bar when she lost control of her car and her car smashed into a fire hydrant on the side of the road in Dorchester. The Boston Police responded to the scene and assisted her. No field sobriety tests were administered to her. The State Police also responded to the scene. It was determined that her car would have to be towed from the scene and the State police conducted a routine inventory search of the car before it was towed. In the car the State Trooper found a prescription bottle in the name of someone other than AK. The prescription bottle was dated 2003 and the bottle contained 19 Ritalin pills and 1 Vyvanse pill. The State Trooper cited AK for 2 counts of Possession of a Class E Controlled Substance. AK contacted Attorney Robert Lewin; Attorney Lewin instructed AK to immediately (i.e., that day) go to Dorchester District Court and request a clerk-magistrate hearing. The purpose of requesting a hearing is to try to prevent a criminal complaint from issuing against AK. AK requested a hearing and a hearing was set up. In preparation for the hearing it was learned that the pills belonged to AK’s boss who had been in AK’s car in the several days before the accident. AK’s boss’s car was in the shop getting repaired and AK had been driving her boss around. The boss used that particular prescription bottle to carry a supply of her prescription medication. The bottle had apparently fallen out of the boss’s purse and when AK found it on the floor of the car AK put the bottle in her own purse to return it to her boss the following day. In preparation for the hearing Attorney Lewin with the help of AK and her boss brought the following evidence to Dorchester District Court for the hearing: (1) A work order and bill from the repair shop to prove that the boss’s car was in the shop; (2) A letter from the boss’s doctor stating that the Doctor had prescribed the medications that were found; (3) The boss’s written prescriptions from the pharmacy to show that the pills had been obtained pursuant to a valid prescription. Attorney Lewin met with AK and her boss and fully prepared them to testify at the hearing. On February 9, 2012 Attorney Lewin, AK, and her boss appeared at Dorchester District Court. At the hearing the Clerk-Magistrate DENIED the application of the State Police for a criminal complaint against AK. This was a significant win for AK. She is a student at a prestigious college in Boston and could not afford to have a criminal record for a drug case. By getting a clerk-magistrate hearing we were able to avoid having a criminal complaint issue against AK and she has NO criminal record.
DRUG DEALING CHARGE REDUCED
On December 22, 2011 EO drove from his home in Woburn to the parking lot of the Chateau restaurant off Route 93 in Andover. He waited. Shortly after his arrival a vehicle with New Hampshire plates pulled in. A woman exited the vehicle with NH plates and she got into EO’s vehicle. All this was happening under the watchful eye of an undercover State Trooper who was sitting in an unmarked car in the same parking lot. It appeared to the officer as if an exchange of some type was taking place in EO’s car. After a while the woman got out of EO’s car and headed back to her car. The undercover trooper went over to EO’s car and told EO to stay put. The trooper then went over to the woman’s car; according to the trooper she admitted selling 90 percocette pills to EO. The trooper arrested her. The trooper then went over to EO and asked EO if EO had anything the trooper should know about. EO handed the trooper a plastic bag with the 90 percocette pills. EO said the pills were for his own use; the Trooper said tell it to the judge and arrested EO and charged him with Possession of Class B with intent to distribute. This is a felony and a conviction carries a three year loss of license. EO retained Attorney Robert Lewin. EO insisted the pills were for his own use and that he was not a dealer. The history that EO presented is very common. EO had been employed by the public works department of a small town north of Boston. In 2005 he fell down a 30 foot manhole fracturing his leg. He had surgery on his leg and a rod was implanted with screws. When he was discharged from the hospital he was given a prescription for percocette – a highly addictive pain medication. In 2010 he developed an infection around the surgical location and a second operation was conducted. For the pain he was again prescribed percocette. He became addicted to the percocette and bought them in bulk from a drug dealer (the woman). Attorney Lewin obtained the following pieces of evidence and presented them to the Assistant District Attorney in an effort to get the DA’s Office to reduce the charge from Possession with Intent To Distribute to Simple Possession: (1) A color photo taken in 2005 of the open manhole into which the EO had fallen; (2) the fire department report from the day of the accident of the rescue of EO from the manhole; (3) the ambulance report showing that EO had been brought to the hospital; (4) the surgical report from Mass. General Hospital detailing the implant of the rod and screws into EO’s leg; (5) an x-ray showing the rod and screws in EO’s leg; (6) the discharge summary from the hospital showing the prescription for percocette; (7) the hospital reports from 2010 showing the second surgery and the re-prescribing of percocette. Attorney Lewin presented all this evidence to the Assistant DA. The Assistant DA was convinced that EO was not a drug dealer and that these pills were for EO’s personal use in controlling his pain. The DA dropped the “intent to distribute” charge. On February 8, 2012 EO and Attorney Lewin appeared in Lawrence District Court and the Judge took the reduced charge of simple possession and continued it without a finding for one year. If EO stays out of trouble for the one year the case will be dismissed and then the record can be sealed. As a result there is no conviction and no loss of license and in one year EO’s record will be wiped clean.
GRAND LARCENY THIEF GETS BREAK
TK, a 66 year old retired man from Boxford, was caught stealing dinnerware from Building 16 in Haverhill. He was charged with Larceny Over $250, a felony in Massachusetts. A review of the facts indicated that TK had lost his employment as a result of the recession. TK retained Attorney Robert Lewin. Attorney Lewin met with the Assistant District Attorney in Haverhill District Court and convinced the Assistant DA that TK was worthy of a break. On February 8, 2012 Attorney Lewin and TK appeared in Haverhill Court and by agreement TK’s case was continued for six months without a finding. The judge waived the probation supervision fee and so long as TK stays out of trouble the case will be dismissed at the end of the six months. Under the new Massachusetts Criminal Records Law, TK will be eligible to request that his record be sealed at the end of the six months.
OPEN AND GROSS LEWDNESS RECORD SEALED
The importance of getting a criminal record sealed cannot be overstated especially if you are looking for work. RL is a 44 year old man from Billerica, MA and is a driver for a major transportation company. When he got his job no criminal record background check was done. At the beginning of January 2012 RL learned that his company was now demanding criminal record checks on all employees. RL had a criminal record that went back to 1985 and culminated in 1990 with two convictions for open and gross lewdness in Somerville District Court. If his employer were to learn of those two convictions it is almost a sure bet that RL would get fired. On Thursday, January 5, 2012 RL contacted Attorney Robert Lewin for the first time and arranged to meet with Attorney Lewin on the evening of January 5, 2012. Attorney Lewin had prepared the paperwork to get RL’s record sealed and at their first meeting on January 5 RL signed the paperwork. Attorney Lewin immediately submitted the petition to seal record to the Board of Probation. On Monday, January 9, 2012 the Commissioner of Probation approved the Petition to Seal RL’s criminal record. Thereafter, RL’s employer had RL sign an authorization allowing the employer to obtain a copy of RL’s criminal record. The employer submitted the authorization and the Board of Probation reported back that RL had no record of any criminal court appearances. There are two methods of getting a record sealed: one involves a Petition to Seal submitted directly to the Commissioner of Probation; the other involves a Petition to Seal submitted directly to the court where the criminal case was heard.The type of Petition that is used is determined by how old the criminal record is and the date of the last criminal case on the record. In RL’s situation, his cases were old enough that he was entitled to have his record sealed by a Petition submitted directly to the Commissioner of Probation. This type of Petition is easy, quick, and inexpensive. The firm of Lewin & Lewin does many Petitions to Seal over the course of a year and is highly successful.
CLEARING OLD WARRANTS
MC is now age 48 and resides in Vermont. From 1992 to 2000 he lived in Massachusetts and had a string of criminal offenses that brought him into New Bedford District Court, Hingham District Court, Barnstable District Court, and Wareham District Court. His crimes included the following: Larceny By Check (4 counts), Counterfeiting a Motor Vehicle Document (Title), Larceny Over $250 (2 counts), DUI Liquor, Operating to Endanger, and Operating After Suspension of License. In 2000 he left Massachusetts and settled down in Vermont. He started a business and became quite successful. Then he got a notice from the DMV in Vermont that Vermont would not renew his license because of outstanding warrants in four Massachusetts Courts. MC retained Attorney Robert Lewin who immediately went to all four courts. Copies of all the papers from all his cases in all four courts were obtained. The DA’s Offices in all four courts were contacted as well as the probation offices in all four courts. The cases in Barnstable District Court and Hingham District Court required only the payment of money and the obtaining of certain papers. MC paid the moneys that were owing and furnished the necessary papers and the cases in Barnstable District Court and Hingham District Court were resolved by Attorney Lewin without MC having to appear in Court. The warrants in both courts were cancelled and the cases in those two courts were closed. The cases in New Bedford District Court and Wareham District Court posed additional problems for MC. Incredibly all the witnesses in the cases in those two courts were still around and were anxious to testify against MC. MC had screwed several companies out of substantial sums of money and they wanted their money back or a piece of MC’s hyde. The DA’s Offices in both courts were prepared and willing to try the cases. Lengthy negotiations went on about paying the money back and on January 26, 2012 MC and Attorney Lewin appeared in Wareham District Court (at 9:00 AM) and in New Bedford District Court at 11:00 AM. In Wareham District Court MC made a payment of $6,000 in restitution and the Larceny Charges against him were outright dismissed and the warrants were cancelled. MC and Attorney Lewin then drove to New Bedford. In New Bedford District Court MC made a payment of $7,000 in restitution. The $7,000 was one-half of the money that he owed. By agreement with the DA’s Office the warrant against MC was cancelled and the case was continued for three months to pay the remaining $7,000 in restitution. The DAs Office has agreed to dismiss the charges against MC outright on the three month date if the $7,000 balance of the restitution is paid by that date. As a result, MC has walked away from a combination of several felony and misdemeanor charges in 4 courts after having been on default (i.e. on the run) for 12 years. He did not spend a day in jail. All his warrants have been cancelled and his driving privileges have been reinstated. MC was so pleased he gave Attorney Lewin a bonus!
BILLERICA DRUG DEALER GETS CWOF
DA, a 36 year old iron-worker, made a sale of 4 perc 30s (Oxycodone) pills to two undercover police and was immediately busted. DA had a prior record consisting of 2 DUI cases, 2 assault and battery by dangerous weapon cases, and a prior possession of class D with intent to distribute case. A conviction for this new offense would have caused DA’s motor vehicle license to be revoked for 3 years with the right to apply for a hardship only after 18 months. DA wanted two things: no jail and no loss of license. A guilty finding, even coupled with probation, would have mandated the three year loss of license. DA retained Attorney Robert Lewin to represent him in Lowell District Court. Attorney Lewin contacted the police and the District Attorney. DA had two children he helped to support and was temporarily laid off. DA had no interest in “rolling over” or giving up his supplier. After much negotiation Attorney Lewin was able to convince the District Attorney that DA’s case was an appropriate case to continue without a finding. On January 25, 2012 DA and Attorney Lewin appeared in Lowell District Court. The judge ordered the case continued without a finding for two years. In addition, the police had seized cash and a cell phone at the time of DA’s arrest. We were successful in obtaining a return of DA’s cell phone and one-half the cash. DA left the court a happy man. By getting the case continued without a finding DA did not lose his driver’s license and he did not get a conviction on his criminal record.
INDECENT ASSAULT & BATTERY-WOBURN DISTRICT COURT
JN, a deliveryman for a home delivery service, made routine and frequent deliveries to a disabled woman at her home. One day while making a delivery she asked him to do a favor which he did. He told her he felt he deserved something for the favor. She went to give him a kiss on the cheek. He then kissed her on the lips inserting his tongue into her mouth. She retreated to her bedroom; he followed her and then proceeded to fondle her breasts (over her clothes), he lifted her shirt exposing her breasts, and he fondled her crotch area. He offered to show her his genitals but she declined. He then left. She was terrified. The matter was reported to the police. JN went to the police and confessed. He was summonsed to court and charged with two counts of indecent assault and battery on a person age 14 or over and one count of accosting and annoying a person of the opposite sex. A conviction of indecent assault and battery would have required (1) that JN register (for 20 years) as a sex offender with the Massachusetts Sex Offender Registry Board and (2) that JN wear a GPS device for the term of probation (if probation was imposed). JN retained Attorney Robert Lewin. JN did not want to go to trial but wished to resolve the case with probation without sex offender registration and without GPS Monitoring. JN was sent to
DWI NOT GUILTY IN LOWELL DISTRICT COURT
DM, a 45 year old male nurse, and two friends went to a charity dance at the Tewksbury Country Club. After an evening of dancing and several drinks DM and his two companions left the dance hall and were followed out by an angry crowd who thought that DM and his companions had stolen items from the charity dance. DM and his companions got into DM’s car and left the parking lot of the country club and headed out onto the street. DM stopped in traffic and then found his vehicle surrounded by an angry mob. Several people in the mob began beating on DM’s vehicle, smashing the windows, and punching DM. DM sustained injuries to his cheek, forehead and neck and he sustained a fractured clavicle (shoulder bone). During the assault he attempted to escape and his car struck and the vehicle in front of his. The police and fire department arrived at the scene. DM was asked to exit his vehicle which he did. The police had him perform field sobriety tests which he was unable to do to the officer’s satisfaction. DM got arrested for DWI. He was brought to the station, booked, photographed, videoed, and bailed. After getting bailed he went to the hospital where he was examined. The injuries to his face and his shoulder were noted in the hospital reports. DM retained Attorney Robert Lewin. Investigation revealed that there was a video of the front foyer of the Country Club Function Hall. Attorney Lewin obtained that video. After sifting through hours of the video DM was seen on the video twice: once walking from the function room to the men’s room (and back) and more importantly once at the end of the dance leaving the function room, walking across the foyer to the front door. In both instances his walking was perfectly normal. He did not stagger or exhibit any signs of intoxication or impairment. Defense counsel was furnished with copies of the booking videos and the booking photos. The photos were initially furnished in black and white. Attorney Lewin insisted that color photos be produced and they were. The color photos showed the bloody injuries to DM’s cheek, forehead, and neck. Attorney Lewin interviewed the driver of the car in front of DM and he confirmed DM’s account of the mob assault on DM and DM’s car. On October 17, 2011 the case went to trial in Lowell District Court. DM elected to have a jury-waived trial (that is a trial by a judge alone without a jury). DM testified; the two people he went to the dance with testified; the driver of the car that he struck after being assaulted testified; and the medical records were produced. The Judge immediately found DM not guilty. The key to success in the case was in the full preparation for trial. DM and his witnesses were thoroughly prepared for both direct examination and cross examination. All the necessary videos and photos were obtained and studied. The medical records were obtained. No stone was left unturned. DM left the court a happy man.
SPEEDING TICKET BEATEN-LICENSE SAVED
RJ, a 54 year old man who drives for a living, was at risk of losing his license for three speeding tickets. He had gone to Haverhill (MA) District Court on his own and lost his appeal of a speeding ticket and he had paid a speeding ticket in California which was then reported to Massachusetts. He then got stopped on the Lowell Connector and was charged with going 71 mph in a 55 mph zone. The police were using a Lidar Device. If found responsible he would have lost his license. On October 5, 2011 RJ and Attorney Robert Lewin appeared in Lowell District Court for the hearing in front of the Clerk-Magistrate. RJ thought his case was hopeless. After a full hearing before the Clerk-Magistrate RJ was found NOT responsible. RJ and Attorney Lewin focused on RJ’s version of what had occurred and his testimony that he was going 53 mph. The Clerk-Magistrate found RJ’s version credible, the Lidar reading notwithstanding.
DOMESTIC ASSAULT DISMISSED IN LAWRENCE DISTRICT COURT
NF and her domestic partner of 23 years live together in Andover, MA. On September 21, 2011 the two women got into an argument; the argument turned physical; punches were thrown and a glass bowl got tossed and smashed. The partner called the police to get NF removed from the house. The police repsonded and saw the partner with a black eye and NF got arrested and charged with Domestic Assault and Battery and Assault with a Dangerous Weapon (a glass bowl). The police photographed the partner’s black eye. NF appeared in Court for an arraignment on the next morning and her case was continued for a pre-trial hearing to November 4, 2011. On Saturday morning September 24, 2011 NF and her partner met with Attorney Robert Lewin in Andover for a free initial consultation. During that initial meeting Attorney Lewin learned that NF herself had received several bruises in the fight and Attorney Lewin had photographs taken that day of NF’s bruises. Attorney Lewin prepared an Accord and Satisfaction and a Fifth Amendment Affidavit for the partner to sign. The partner did not want NF to be prosecuted and wanted the case dismissed. Massachusetts Law permits the accused and the “victim” in an assault and battery case to work out a financial settlement of the case. That financial settlemnt is called an Accord and Satisfaction. Upon the filing of an Accord and Satisfaction a judge has the discretion to order an assault and battery charge dismissed. The judge is not required to dismiss the assault and battery but the judge may order the assault and battery charge dismissed. Technically an Accord and Satisfaction does not apply in the case of a felony. Assault and Battery is a misdemeanor in Massachusetts. Assault with a Dangerous Weapon is a felony and technically an Accord and Satisfaction is not available for the felony charge. In addition to the Accord and Satisfaction Attorney Lewin also prepared a Fifth Amendment Affidavit for NF’s partner to sign. Because the partner had exposure herself to being prosecuted for Assault and Battery against NF, the partner had an absolute right not to incriminate herself and therefor an absolute right not to testify in the case against NF. On September 28, 2011 Attorney Lewin met with the Assistant District Attorney assigned to the case for a pre-trial conference. Although the DA’s Office recognized that the partner had a right not to testify the DA’s Office was unwilling to dismiss the case at the pre-trial hearing. As they always do, the DA’s office was insisting that the parties appear for a pre-trial hearing and that the case then be set down for trial on a date thereafter. On Thursday, September 29, 2011(8 days after the fight) Attorney Lewin had the case brought forward and Attorney Lewin, NF and her partner (the named victim in the case) all appeared in Court. Attorney Lewin presented the written Accord and Satisfaction and the written Fifth Amendment Affidavit to the Judge. The Judge asked if the partner was present in Court and Attorney Lewin had her come forward. The Judge then determined that the partner had a valid Fifth Amendment claim. The Commonwealth conceded that they could not go forward without her testimony. Attorney Lewin moved for dismissal of the charges; the Assistant District Attorney objected and asked that the case be set down for trial. Over the objection of the Assistant District Attorney the Judge ordered the case dismissed. It took just eight days from the date of arrest (September 21, 2011) to dismissal of all the charges (September 29, 2011). Both NF and her partner were thrilled that the case got disposed of so favorably and so quickly. The results in this case are common at Lewin & Lewin. We don’t sit back and wait for things to happen; we make things happen and we do it quickly.