Reckless/Negligent Operation Charge Avoided at Clerk-Magistrate Hearing

On July 24, 2019 SB, a 74 year old retired administrator from North Andover, was driving from Peabody Center westerly on Route 114 toward Danvers. As he traveled westerly he approached the section of Rt. 114 where the North Shore Mall is on the left and Kappy’s Liquors is on the right. He was in the third lane from the right. According to SB he applied his brakes and the car did not slow. He then turned his steering wheel to the right to pull into the parking lot of Kappy’s. There was a motocycle in the lane immediately to SB’s right. When SB made that sudden turn he collided with the motor cycle. The cyclist was thrown off the motorcycle and was severely injured. He had a fractured leg and a possible head injury. SB continued into the parking lot of Kappy’s and the police were called by another motorist. SB waited at the side of Rt. 114 and the police arrived shortly thereafter. Three witnesses at the scene all told the police that “the motorcyclist was travelling straight ahead, and the other vehicle involved turned in front of him resulting in the crash”. The motorcyclist told the police that he was travelling straight ahead when SB’s vehicle suddenly turned directly in front of him causing the crash. The police cited SB for reckless operation.

SB spoke to at least 4 criminal lawyers. SB met with Attorney Robert Lewin from Andover. They had an initial free consultation that lasted 2 hours. Attorney Lewin explained to SB that reckless operation carried a potential jail sentence of 2 years and a mandatory loss of license. Attorney Lewin downloaded SB’s driver history from the Registry of Motor Vehicles and it was terrible. SB had a prior conviction for Reckless Operation, 4 surchargeable at fault accidents, and 12 other moving violations. Attorney Lewin could sense immediately that SB was going to be a difficult client. SB thought he had all the answers and he thought he knew exactly how the defense should proceed. He was dead wrong and Attorney Lewin told him so. SB retained Attorney Lewin.

Attorney Lewin explained to SB why it was so important to try to kill the case at a Clerk-Magistrate Hearing. SB brought the citation to the Peabody District Court and requested a Clerk-Magistrate Hearing. Attorney Lewin then went over to Peabody District Court and obtained copies of all the police reports. More importantly, Attorney Lewin met with the Police Prosecutor from the Peabody Police Department. The purpose of the meeting was to advocate on SB’s behalf to get the case resolved at the Clerk-Magistrate hearing without a criminal complaint being issued against SB – a very tall order given the facts of the case, SB’s driver record, and the severe injuries sustained.

Ultimately the Clerk-Magistrate hearing was set down for January 28, 2020. Attorney Lewin explained to SB that SB was not going to testify at the hearing. (Every time SB opened his mouth he said something damning to himself.) Prior to the hearing Attorney Lewin spoke again with the police prosecutor.  On January 28, 2010 SB and Attorney Lewin appeared at the hearing. The police prosecutor read the police report. Attorney Lewin then forcefully argued that this was purely an accident, that SB had not been reckless. Attorney Lewin requested that the Clerk-Magistrate NOT issue the criminal complaint against SB. The Clerk-Magistrate turned to the police prosecutor who said that he did not object to Attorney Lewin’s request. The Clerk-Magistrate then ruled that there was no probable cause to issue the complaint and he denied the complaint.

Attorney Lewin then thanked the Clerk-Magistrate. Before Attorney Lewin and SB could leave the hearing room SB spoke up and wanted to explain his version of the accident!! He had just won his case without saying a word. Attorney Lewin grabbed SB’s arm and whispered in SB’s ear: “Shut the f__k up.” Attorney Lewin pulled SB out of the hearing room before SB could get the Clerk-Magistrate to change his mind.

As a result of this disposition Attorney Lewin explained the following to SB:

  • SB was NOT charged with a criminal offense.
  • NO criminal complaint was issued against SB.
  • SB did NOT have to return to court and go before a Judge.
  • SB did not lose his license.
  • NO entry was made on SB’s criminal record.

Attorney Lewin and SB left the Courthouse. Like Attorney Lewin said earlier, SB was a difficult client. He complained about having to go through the process and never even said “thank you” to Attorney Lewin for having gotten the very best possible result.

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